duty to properly screen and supervise employees.
First, for example, a few statutes and regulations impose a duty upon most
employers to investigate under limited circumstances. Civil rights laws prohibit various forms of workplace discrimination. This general duty includes the right of employers to investigate allegations of discrimination, harassment, and retaliation.
Because a prompt investigation, combined with a response that stops the miscon-
duct, generally bars a claim for the original violation, employers have a substantial incentive to investigate all such allegations. While this is technically not a duty to investigate, since a failure to investigate does not necessarily give an employee the right to sue, it is a practical matter often the equivalent of a duty for employers, because a failure to investigate can cause an employer to lose one of its most effective tools for limiting exposure to claims under the civil rights laws.1 Also, the general duty clause of the Occupational Health and Safety Act (and similar
clauses under state plan programs) requires employers to maintain an environment
“free from recognized hazards that are causing or are likely to cause death or serious physical harm to their employees.”2 If an employee demonstrates a propensity toward violence and the employer fails to investigate, the employer might be cited for violation of the general duty clause if the employee later injures another. For those interested in more details, go to OSHA’s Fact Sheet on workplace violence at http://www.osha.gov/OshDoc/data_General_Facts/factsheet-workplace-violence.
pdf. In a situation where the organization is the alleged perpetrator, e.g., defraud-ing the government or investors, and is facing criminal prosecution in federal court, under the Federal Sentencing Guidelines, the court may reduce the severity of its penalty if the employer investigated the alleged misconduct in a timely manner.3
Further, employers in certain regulated industries have a duty to investigate
specific types of incidents. For example, healthcare providers must investigate cases of patient abuse; pharmaceutical companies must investigate missing controlled
substances; financial institutions must report certain financial transactions, losses, and irregularities; and officers and boards of public trade corporations now have a greater duty to ensure the accuracy of their financial statements.
Second, employers have an implicit duty to conduct reasonable inquiry when
investigating suspicious behavior of union and possibly other not-at-will employees.
Union and personal contracts of employment usually contain clauses that stipulate
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discipline, and termination must be based on cause, just cause, good cause, or other similar standards. These contracts place the burden upon employers to produce sufficient evidence to sustain the appropriate disciplinary actions. Implicit in this condition is the requirement of a reasonable investigation. Failure to do so may leave an employer in a position where it loses a grievance hearing or breach of contract lawsuit because it cannot meet its contractual evidentiary burden.
Third, many courts recognize common law claims of negligent hiring and
negligent supervision. Negligent hiring occurs when an employer hires an
untrustworthy employee into a position of trust and the employee subsequently
injures another. A position of trust is one where others are highly dependent upon the employee to perform his duties in a reasonable and safe manner. Negligent
supervision occurs when an employer has or should have knowledge that an
employee is unfit for duty or for performing his duties in an unsafe manner.
For example, allowing an intoxicated employee to operate a company vehicle or
failing to properly intervene when an employee threatens another may expose
employers to liability based on their failure to investigate further and take appropriate remedial measures.
In Salinas, the Supreme Court of Texas affirmed a jury verdict in excess of $3
million against a taxi company held liable for negligent hiring of a taxi driver who had been given a taxi permit by the police.4 The firm failed to do a separate criminal background check. If it had, the background check would have revealed multiple
felonies. The driver sexually assaulted a female customer. Because of the high trust customers place in taxi drivers, the company was held to an ultrahigh duty of care in hiring and was not permitted to shift its responsibility and liability to the police.
In Saine, the Supreme Court of Arkansas held a cable company could not be sued for negligent hiring, but could be sued for negligent supervision and retention.5
The company hired a cable installer who brutally sexually assaulted and attempted to murder a customer in her home. The company did check with two past employers, verified he had an honorable military discharge, and administered a drug test prior to hiring. But, the company did not follow up on an earlier female customer’s complaint that the employee made sexual advances and her allegation that he left windows unlocked and later attempted to break into her home.
In Yunker, the defendant company rehired a man who had spent five years in prison for the murder of another employee (the circumstances of this case were
never set forth).6 He was twice transferred to new facilities after he had some encounters with co-workers. At the last facility, he was terminated for threatening a female subordinate. He murdered her a few days later in her front yard. The Appeals Court of Minnesota affirmed the dismissal of the negligent hiring claim on the grounds it would undermine the public policy of rehabilitation to find an employer was negligent for hiring a felon. But, it reinstated the family’s negligent retention claim because it was based on more than the mere fact the employee had a felony history; it was based on “several workplace outbursts” by the employee
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“specific(ally) focus(ed)” on the victim, including one in which the words “one more day and you’re dead” were scratched on her locker door.
In conclusion, the decision to investigate must be made based on a deter-
mination of whether the employer owes a legal duty to investigate or, in the
absence of a legal duty, on a determination of ROI as discussed elsewhere in
the text.
7.3.2 Investigator Selection
As discussed at length in Chapter 4, the selection of the right fact finder/investigative interviewer is critical. The fact finder and his team should have a combination of experience, education, and continuing professional development sufficient for the level of sophistication of the investigation. An experienced individual, with a successful record of prior investigations of similar nature and complexity, is more likely to appreciate the time and resources necessary to complete the project properly; be more familiar with the appropriate agencies and courts that may review the investigative process; and possess more insight as to the legal duties owed, standards of proof required, and overall liability risks. This is not to say that employers cannot call upon less experienced fact finders, for it may be very appropriate to use less seasoned investigators so long as they are properly supervised. Selection of an investigator or investigative team, either employee or outside contractor, is an important decision that employers should make with care.
7.3.2.1 Liability for Employee Fact Finder/Interviewer Misconduct
What is the liability of an employer for the misconduct of its fact finder? Under the doctrine of respondeat superior , a principal is vicariously liable for the actions of its agent that are committed within the scope of employment or engagement.
An employer–employee relationship is a principal–agent relationship because the employer has control over the methods of work and performance outcomes. An
employee investigator conducting a workplace investigation on behalf of the company is an agent of the company, and the employer may be held li
able for any misconduct.
7.3.2.2 Liability for Contract Fact Finder/Interviewer Misconduct
A contract investigator is, in most cases, an independent contractor of the client principal. An independent contractor does work for a principal, and the principal controls the performance outcome. However, unlike with an agent, a principal does not exercise the same degree of control over the methods of performance. An independent contractor performs the work according to his methods or the methods of his trade or profession. Under the independent contractor rule , a principal is not liable for the conduct of the independent contractor on the premise the principal does not exercise substantial control over the contractor’s methods.
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For example, in Paradoa, the plaintiff, a worker on disability benefits, sued an insurance company for the alleged verbal abuse of investigators working for
the private investigative firms it retained to conduct routine activities checks.7 The Appeals Court of Massachusetts affirmed the insurance company was not liable for conduct of the independent investigators because the insurance company
provided no instruction or protocol to … the investigators as to the
manner it wanted work on its behalf conducted … did not supervise
the … investigations or ask for amplification of reports that were filed
by … the investigators … and the investigators billed the agencies that
hired them, not CNA (the Defendant), and were paid by those agen-
cies … the conclusion compelled by the evidence is that CNA con-
tracted out work to them when needed and left to them the manner
and means.
However, a principal may be held liable for the acts of an independent contrac-
tor if the principal retains control over the contractor in the contract for service or actively exercises control over the activities of an independent contractor. A principal also might be held liable if it knows the contractor is engaged in misconduct and ratifies this conduct by not taking appropriate action to stop further similar conduct. In Greenbaum, when interviewing an employee subjected of theft, a private investigator placed his chair in front of the door in the manager’s office, twice told the employee he could not leave, and even once shoved him back into the
chair.8 The Court of Appeals of Georgia, in affirming a judgment for false imprisonment against the company, noted the defendant could be held liable for the conduct of the investigator on the grounds the “defendants actually exercised a power of direction and control over the interrogator at the time of plaintiff’s detention.”
Specifically, the court commented on the fact noted that the store manager and
investigator had planned the interrogation together, and it was the manager who had determined when it was over.
7.3.2.3 Contractual Shifting of Liability Risk
As a means of managing liability risks, principals and independent contractors may include certain provisions in the contracts for service. For example, a contract may require the independent contractor to carry a specified amount of general liability, errors and omission, or other insurance coverage. Further, the principal may require proof of insurance and notification of cancellation. Either party may require the other to indemnify the other for any third-party claims and lawsuits arising out of performance of the contract. If there is a dispute over proper performance of the contract, the parties may stipulate the maximum damage exposure to each other.
From the perspectives of the employer and contract investigator, the more clearly the roles, objectives, and risks are defined at the beginning of the relationship, the
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more probable the investigative process will be conducted in a reasonable and professional manner.
7.3.3 Investigative Objectives
The investigative objectives set the focus and tenor of an inquiry. The objective of an investigation is not to get the money or the subject to show who runs the business, or to make an example of the subject. In Kelley, for example, the Massachusetts Court of Appeals, in affirming a $36,000 judgment for abuse of process against a company, was not impressed with the company investigator, who testified “his job was to make sure he got the $96 and 9 cents.”9 This and similar statements are the antithesis of a professional investigation and set the stage for unnecessary liability.
The objectives of an investigation must be lawful in purpose, scope, and meth-
ods. An employer should have a clear, legitimate business purpose for launching a workplace investigation. The scope of the inquiry, too, should be limited to the legitimate purpose of the investigation. The methods of investigation must be lawful as well. For example, while an employer may have a right to conduct criminal background checks on job applicants, a decision to investigate the criminal backgrounds of only minority applicants is a discriminatory and unlawful purpose.
Similarly, during an undercover investigation into subjected employee on-the-job illegal drug use, it may be within the scope of the investigation to observe and report on the subject’s union employee involvement, but it would clearly be outside the scope of the investigation to also report on his lawful union activities.
Finally, the philosophy “the ends justify the means” is not acceptable. The methods of inquiry must be reasonable. Employers may have the right to conduct investigative interviews with their employees, but regardless of how serious the offense, it would be clearly unlawful to physically or coercively detain the employees against their will in order to interview them.
Tip: A professional workplace investigation is a tool. It is a lawful inquiry, reasonable in scope and methods, conducted by a qualified individual or team to systematically identify, collect, and document material evidence about a legitimate workplace concern. Like most tools, a workplace investigation is something that should never be misused.
7.3.4 Identifying Standards of Proof
Inherent in the issue of determining the investigative objectives is identifying the applicable burdens and standards of proof to be placed upon the process. For example, if an organization’s investigation is noncriminal in nature, it makes little business sense to devote extra resources necessary to achieve the criminal burden of
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proof beyond a reasonable doubt. As noted earlier, a decision to terminate a union employee may, depending upon the language of the bargaining agreement, be satisfied by showing cause, just cause, or good cause. If an employee files a claim for unemployment benefits, the company may prove ineligibility by merely establishing the employee’s willful misconduct. The key point is that, at the beginning of an investigation, the employer should be cognizant of the standards and burdens of proof that it may need to prove: to bring an action against the employee and to defend its conduct should the employee later make a claim against it. One overlooked and sometimes costly risk in this process is an employer will assume a higher standard of proof than necessary to achieve the legitimate objectives of the business.
For example, assume a manufacturer receives an anonymous tip on its hotline
that a few employees at a small facility are taking inventory from the plant after hours. It is a violation of company policy to be onsite during nonoperating hours without authorization. It is also a violation to remove property without authorization. The manufacturer conducts a routine inventory audit and discovers an
unexplained 10 percent inventory variance at one of its small plants. The company president tells the corporate security manager to investigate. When asked, he states he does not want to prosecute the employees. The security manager contracts with an experienced licensed private investigator in that state to conduct video surveillance of the plant after hours. Three days later, the investigator provides video evidence of three persons entering the plant after hours and removing several cartons.
All three are readily identifiable as
employees. Their duties do not entail being onsite after hours nor the removal of property. Herein lies the issue, should the company spend further funds to gather more video evidence, to track the property removed, to catch the employees in the act, and to prove employee theft beyond a reasonable doubt? Or, should the company cease the video surveillance, interview the employees to verify their unauthorized presence and removal of boxes, and
terminate them for violation of company policy? An intelligent response to this situation can only be made if the fact finder understands the legitimate intent of the president and applicable burdens and standards of proof necessary to protect the interests of the company should the employees file wrongful discharge and other civil actions, or seek unemployment benefits.
7.3.5 Documentation Control
Almost every investigation will produce some records even if it is as simple as a note on a calendar about a call from a concerned employee or verbal disciplinary meeting with an employee. Records produced during workplace investigations and resulting disciplinary actions are often discoverable during administrative and judicial proceedings. This includes notes on calendars, field notes, e-mail messages, investigative reports, conference notes, disciplinary actions, and other documents produced as the result of the investigation, disciplinary action, and postinvestigative analysis.
Proper documentation control procedures for creating, labeling, copying, tracking,
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distributing, and retaining investigative documents should be established. Without such ground rules, there are risks. Documentation may be produced that is immaterial or even harmful to an investigation; investigative documents may be inad-vertently intermixed with other records and create problems locating and editing them when requested in litigation; vital evidence may not be properly documented; sensitive information may be too broadly distributed; and critical documents may be lost. Ideally, documentation controls should be established before any specific investigation and reviewed in the preparation and planning phase. In the alternative, ground rules should be established in this phase before the information and fact-finding phase begins.
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