Investigative Interviewing: Psychology, Method and Practice
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7.3.6 Confidentiality
It is a recommended practice in the planning stage of an inquiry to remind all of the participants, especially those who do not normally participate in investigations, that the information uncovered and discussed is to remain confidential; shared
with only those who need to know in performance of their duties. The acciden-
tal exposure of an employer’s investigation or investigative results is almost always undesirable. If employees become aware of critical information or investigation before its completion and some form of formal communication by management,
it may adversely impact morale and productivity. Customers or suppliers also may feel resentful of having been a part of the investigated activity and may choose to discontinue their relationship or patronage. Public exposure of a compromised investigation may spark resentment, an onslaught of painful adverse publicity, and law suits. The failure to timely remind all parties, at the outset and throughout the inquiry, of their duty to retain confidentiality can only harm the investigative process and enhance the liability risks.
7.4 Information Gathering
and Fact-Finding Considerations
The confluence of federal and state laws, regulations, and judicial decisions makes the information gathering and fact finding phase the most dynamic and complex,
and the highest risk phase of the investigation. Fact finders must be sensitive and responsive to a complex mixture of constitutional, administrative, civil, and criminal laws that proscribe behavior, standards, and burdens of proof. Uninformed fact finders may unduly restrict their methods of investigation, expend unnecessary
time and resources to achieve an unnecessary standard of proof, or engage in high-risk conduct that increases their employers’, their clients’, and their own personal liability exposure. The next several sections address fact-finding liability concerns in more detail.
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7.5 Constitutional Considerations
The Fourth Amendment of the U.S. Constitution guarantees “the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment guarantees the right against
self-incrimination, and the Sixth Amendment provides the right of legal counsel in criminal proceedings. Under the exclusionary doctrine, evidence obtained in
violation of these constitutional rights may be ruled inadmissible in criminal
proceedings. Employers and employees are often confused about the constitu-
tional protections afforded employees during workplace searches and investi-
gations. Employees often believe they enjoy constitutional protections against
workplace searches and are entitled to be advised, based upon the landmark U.S.
Supreme Court decision in Miranda, of their constitutional rights to remain silent and to have legal counsel present when interrogated.10 Collectively these rights among others constitute the right of due process. Employers, on the other hand, are frequently uncertain whether they are bound by the prohibitions of
the Constitution and precisely whether due process rights should be afforded a
subject employee.
The federal and state courts (which are obligated to abide by the decisions of
the federal courts in this area of law) have been petitioned by numerous criminal defendants to apply federal constitutional rights to private sector investigatory matters. The courts have consistently held that there must be state action (government involvement or entanglement) to invoke the protections of the Constitution. As a rule, private parties are not viewed as state agents nor is their conduct viewed as state action. The courts, under most circumstances, view corporate and private
investigators as private parties engaged in private actions.
7.5.1 Self-Incrimination
In Antonelli, a contract security officer searched the car of a dock worker and found stolen imported merchandise worth thousands of dollars.11 The employee made
several self-incriminating statements at the scene. He was convicted at trial and appealed the use of the self-incriminating statements to the security officer. The appeals court stated:
there was no governmental knowledge or instigation of, influence on, or
participation in any of the actions surrounding the taking of appellant
into custody, which produced the statements unsuccessfully sought to
be suppressed prior to trial … the Fifth Amendment privilege against
self-incrimination does not require the giving of constitutional warn-
ings by private citizens or security personnel employed thereby who
take a subject into custody
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The U.S. Court of Appeals affirmed the admission of the incriminating state-
ments and the conviction.
Similarly, in Green, an employee made several incriminating statements when
“interrogated” by a company investigator without being advised of his constitu-
tional rights. He objected to the use of the statements at his criminal trial.12 The Court of Common Pleas of Pennsylvania noted:
The overwhelming authority from other jurisdictions supports the posi-
tion that “Miranda” warnings need not be given by a private security offi-
cer prior to questioning a subject taken into custody. This Commonwealth
has never squarely decided the issue. “We believe … the guarantees of the
Fifth Amendment are intended as limitations upon governmental activi-
ties and not on private individuals,” thus the “Miranda” warnings need
not be given by persons other than governmental officials or their agents.
7.5.2 Search and Seizure
In Simpson, a union employee refused to open his lunchbox for a routine search by plant security at the end of the workshift.13 He was resultantly suspended.
He requested unemployment benefits for the time of his suspension. The referee
granted him benefits on the grounds he had “good cause” to refuse the search
based upon his belief the search violated his federal and state constitutional rights against unreasonable searches. On review, the full board reversed the decision and the employee appealed. The Commonwealth Court of Pennsylvania rejected the
circuitous logic of the employee who argued the board’s denial of benefits was “state action” because it deprived him of his constitutional right against unreasonable search. The court stated:
It is firmly settled that the Fourth Amendment of the United States
Constitution applies only to the actions of governmental authorities,
and is inapplicable to the conduct of private parties … The same is true
of the search and seizure provision in the Pennsylvania Constitution …
It follows, then, that the right the claimant seeks to establish against
his employer, a private entity, is not a right that arises from the consti-
tutional provisions.
The court affirmed the employer’s search did not violate either the federal or
state constitution.
When acting as private parties in private matters, private sector investigators are not engaged in state action and, thus, are not governed by the constitutional prohibitions against unreasonable searches, self-incrimination, and right to counsel. But, there are exceptions to this general rule.
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7.5.3 Joint Action and Public Function Exceptions
The courts have stated a private party may be held to constitutional standards when acting jointly with a public party to perform a public function. Hypothetically, assume a fact finder had uncorroborated information that an employee was dealing drugs out of his company locker. Now, consider two alternative scenarios. First, assume the f
act finder, per company policy, directed the employee to open the
locker and found what were later proved to be controlled substances. The fact finder then conducted an investigative interview, never advised the employee of his constitutional rights, and the employee provided a full admission. The fact finder called the police to the facility and turned over the drugs and the details of the signed admission. In the second alternative, assume the fact finder called the police and together they opened and searched the employee’s locker and found the subjected drugs. The fact finder and detective jointly interviewed the employee, never advised the employee of his constitutional rights, and he admitted the drugs were his. In this alternative, will the drugs and admission be admissible at the employee’s criminal trial? How would a court make this determination? One way is to look at the level of government knowledge and involvement before and during the time, and
to look at the motives of the private party.
In the first alternative, the government was unaware of and played no role in the search or subsequent interview. Further, the company fact finder acted to protect the interests of the employer. His turning the evidence over to the police did not make him a state actor or agent. Therefore, there is no government action and the evidence and admission should be admissible. In the second scenario, the government played a very direct and active role in both the search and interview that followed. Also, although the investigator was acting to protect the interests of the employer, it appears that he was concurrently acting in a public capacity. Because the fact finder was an active participant and effectively acting as an agent of the government, there is a significant probability that many courts would apply constitutional prohibitions when evaluating the admissibility of evidence under the second scenario.
Note that there is a difference between the police directing or participating in workplace searches and interviews versus being apprised of lawful private sector investigations or standing by as witnesses.14 Private sector investigators also need to recognize that there is an enhanced probability, but not certainty, that their conduct may be subject to constitutional prohibitions if they are off-duty police working security or have special police commissions.15
Tip: Fact finders, as private parties engaged in private action, are not normally subject to federal constitutional prohibitions. But, these prohibitions might apply if they have special police commissions or are off-duty police officers conducting the investigation.
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As discussed later, the proper remedy for unreasonable searches by private par-
ties is a civil suit for invasion of privacy. Similarly, if an employee is unable to leave an interview conducted by a fact finder, the appropriate remedy is a civil suit for false imprisonment.
7.5.4 State Constitutional Issues
A state constitution may set forth similar prohibitions to the federal constitution regarding unreasonable search and seizures, and the right against self-incrimination.16 The states almost universally follow the lead of the federal courts in requiring state action to invoke these protections.17 However, a state Supreme Court may interpret a state constitution as granting greater rights than provided under the U.S. Constitution. For example, in evaluating whether to suppress the admissions and evidence obtained from a shoplifting subject after he had requested to talk with a lawyer and refused to waive his constitutional rights, in Muegge, the Supreme Court of Appeals of West Virginia found the state shoplifting detention law vested private merchants with state powers.18 It stated: “[W]e find that the security guard was not acting in a purely private fashion, but under the mantle of state authority and that, therefore, the protections of … the West Virginia Constitution apply to her dealings with the appellant.”
Three states have held that private security personnel acting under merchant detention statutes were vested with state power. But, two of the three have since reversed their stance. There is debate whether the remaining state, West Virginia, has or has not.19
Nonetheless, workplace searches and employee interviews are not normal y conducted under specific state statutory authority and are not viewed as state action.
It also should be noted that a few state constitutions provide a specific right of privacy. As shown in the following examples, this right may be worded independently of or incorporated in the state prohibition on unreasonable search and seizure. Here are two examples:
California Constitution, Article I, §1
All people are by nature free and independent, and have certain inalienable
rights, among which are those of enjoying and defending life and liberty;
acquiring, possessing, protecting property; and pursuing and obtaining
safety, happiness, and privacy.
Hawaii Constitution, Article I, §5
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches, seizures, and invasion of privacy shall not
be violated.
An important issue in the few states that recognize a state constitutional right of privacy is whether it protects against both unreasonable government and private
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party intrusions. In Hill, a collegiate diver challenged the National Collegiate Athletic Association drug-testing program on the grounds it violated her state constitutional right of privacy.20 The Supreme Court of California affirmed that the provision applied to intrusions by private parties because the constitution has been amended, in part, to protect against businesses collecting and misusing personal data. It adopted a shifting burden test to determine if the invasion was unreasonable. First, the plaintiff must show a legally protected privacy interest, a reasonable objective expectation of privacy under community norms, and a serious breach
of that privacy. The burden then shifts to the defendant to establish that it had a legitimate competing interest or justification for the intrusion. The burden then shifts back to the plaintiff to show a less intrusive means available to achieve the competing interest. Applying this test, the court ruled the NCAA had a legitimate interest in requiring college athletes to submit to drug testing, and the program was not unreasonably intrusive because it contained many procedural safeguards.
The exact effect of this decision on workplace investigations in unknown, in part, because the objective expectations of privacy in the workplace might be somewhat reduced. Nonetheless, of relevance here, fact finders need to be aware of and sensitive to investigate procedures that may violate an applicable state constitutional right of privacy.
7.6 Federal Law and Employee Rights
The U.S. Congress has enacted several labor laws in order to reduce labor strife and promote national economic welfare. Of special interest here, the National Labor Relations Act (NLRA) guarantees employees the right to engage in “concerted
activities” that foster labor organization and collective bargaining.21 The NLRA defines and prohibits “unfair labor practices” by employers and unions, and vests the National Labor Relations Board (NLRB) with authority to receive complaints, investigate, hear, and decide alleged violations under the statute.22 The Labor Management Relations Act (LMRA) places exclusive jurisdiction over labor disputes in the federal courts.23 State courts are preempted from deciding disputes that fall under the jurisdiction of the NLRB. Rulings of the NLRB may be appealed to the federal appellate courts.
7.6.1 Unfair Labor Practices
The NLRB has identified two broad workplace investigative practices it considers unfair labor practices, under section 8(a), that are in violation of employee rights, as set forth in section 7 of the NLRA. Specifical y, section 7 guarantees employees the “right to self-organization; to form, join, or assist labor organizations; to bargain col ectively through representatives of their own choosing; and to engage in other concerted activities for the purpose of col ective bargaining or other mutual aid or protection.” These
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practices deal with the employees’ right of union representation during disciplinary hearings and employer investigations into protected concerted activities.
7.6.2 Union Representation
The landmark case affecting workplace interviews is Weingarten.24 It is based upon an unusual set of factual coincidences. Here is what happened. Based on a report that a food counter employee was stealing cash, a company investigator, without advising store management, watched the food service operation for two days. He
observed no thefts. The investigator introduced himself to the store manager and told him of his investigation. Coincidentally, the manager stated another employee just reported the subject had just paid only $1, the price of a small box of chicken, for a $2.98 large box of chicken. The investigator interviewed the subject employee.
Her requests for a union steward to be present were denied. The investigator confirmed her explanation that the company was out of small boxes and that she had used a large box for her order. He apologized for any inconvenience and prepared to leave. The employee then started to cry and spontaneously said the only thing she had ever taken were her free lunches. She had been with the company for
approximately 11 years and had worked 9 of those years at a store that provided free lunches. The last two years she had worked at a new store that, by company policy, did not provide free lunches. The investigator began to question her further and calculated she owed about $160 for lunches she had taken. Her requests for a union steward to be present were denied in this session as well. The investigator ended his investigation after he checked with the corporate office and could not verify the no free lunch policy had ever been communicated to the employees at
the current store. The investigator and store manager told her the matter was closed; no disciplinary action was taken against her; and she was asked not to discuss the matter with anyone. A short while later, she revealed the entire matter to a union representative. The union, concerned about the chain of events, filed an unfair labor practice complaint on the grounds the employer had refused her requests for a steward to be present during the interviews. The NLRB held that union employees upon their request are entitled to union representation during interviews that they reasonably believe might lead to discipline. The denial of this representation was an unfair labor practice. On appeal, the U.S. Court of Appeals disagreed and reversed the decision.