7.7.4.2 Common Law Right of Privacy
Employees also enjoy various degrees of common law right of privacy under the
judicial decisions of the respective state courts. There are three different tort actions for invasion of privacy of interest to workplace fact finders: invasion of privacy—
false light; invasion of privacy—publication of a private fact; and invasion of privacy—intrusion upon seclusion. The first two actions deal with how investigative information is managed, whereas the third tort action deals with the method of
gathering information.
7.7.4.2.1 False Light
False light invasion of privacy is similar to defamation. But, there are differences.
Defamation involves injury to one’s reputation, whereas a false statement involves emotional distress suffered by the party. Defamation may occur with publication to just one other party, whereas a false statement involves publicity.62 A false statement is one made with reckless disregard for the truth that attributes highly objectionable characteristics, beliefs, or conduct to an individual and places him before the public in a false position.63 Publicity means the statement was made before the public or shared with a sufficient number of persons that it is likely to become public knowledge.
In Aranyosi, several employees were terminated when the company elected to contract out their duties.64 During an exit meeting, a few of the employees made
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modestly veiled, threatening remarks. That evening two intruders, dressed in
camouflage, confronted a plant security officer, placed a gun at the officer’s head, made threats against the plant manager, and stated there was a bomb in the plant.
The police were contacted. The police learned from the plant manager and other
employees about the threats of a few terminated and even remaining staff, such as:
◾ What goes around, comes around
◾ You will reap what you sow
◾ Y’all [sic] better watch your backs
◾ I will make sure the same thing happens to you … and your family
One employee was even quoted as saying that “he received a vision about the
warehouse blowing up.” The local newspaper, based on information provided by
the police, reported the incident and bomb threat (no bomb was found) and pub-
lished: “Company officials said they had been threatened earlier that day by several of the 14 employees who officials laid off.” The plaintiff–employees filed suit, in part, alleging false light invasion of privacy, because the information made it appear that they had participated in the threats and attack. The court held there was no false light publication on the grounds the company did not act unreasonably in
relating the comments of the employees and events of the day to the police who
were summoned to investigate the aggravated battery and bomb threat. It granted summary judgment on this issue for the company.
The outcome was different in Lee where a long-term employee was accused of being involved in theft.65 Two company investigators and police detectives went to search his home. Ultimately, three other police detectives, an officer, and 12 to 15 employees were involved. More than 400 items valued at over $50,000 were
taken from the home, placed in the yard, inventoried by the police, and put in a truck rented by the company. The company kept the items in secured storage, but somehow items not listed on the police inventory were co-mingled with the items seized.37 Several persons saw the search in progress and the local papers covered the story. Ultimately, the county prosecutor refused to prosecute the case. Lee filed civil suit. In court, the items that Lee identified as his were returned and the 37
co-mingled items were returned to the company. The court awarded Lee over $1.6
million in damages, in part, for false light invasion of privacy. The Supreme Court of Arkansas affirmed.
Most cases, of course, do not involve the public media. But, it is not necessary for the media to be involved for a plaintiff to file a false light claim. In Bine, an employer installed a camera in its parking lot after reported acts of vandalism and stationed an officer with a handheld camera in the lot.66 The officer observed a suspicious person around a vehicle that had been previously vandalized. He checked the car and noticed it had been recently scratched. The officer identified the plaintiff as the suspicious person (the record was not clear whether any of the incident was recorded on videotape). The plaintiff denied any involvement, but was terminated.
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In order to deal with rumors about the termination, the plant management told a number of employees that the plaintiff, in fact, was terminated for vandalism. The plaintiff filed suit, in part, for false light invasion of privacy. The trial court granted summary judgment to the employer. The Supreme Court of West Virginia held
there was a dispute of material fact as to the truth of the allegation. It noted: “The spreading of such information, if false, could constitute a valid false light claim.”
The court remanded the case to the trial court.
In Smith, discussed earlier, a purchasing agent was suspended pending her decision to resign or take a demotion for her abuse of vacation leave.67 At that time, she was escorted off company property by the investigator. Smith claimed false light invasion of privacy on the grounds it “left her co-workers free to speculate that Smith had been disciplined for something more egregious than vacation day violation, such as fraud or graft.” The court rejected this circuitous argument that she was placed in a false light because the company did not publicize the true reason for her demotion or escort off its property.
7.7.4.2.2 Publication of a Private Fact
There are facts (truths) about people that are private and the law recognizes a tort action for invasion of privacy when such facts are given publicity and such disclosure is highly offensive to a reasonable person.
In Johnson, the employer, based upon reports of employee drug use and large inventory losses, hired a contract investigative firm to provide undercover operatives in its warehouse.68 The agents, based on what they saw and heard, reported on the personal lives of some of the employees, including information about children, domestic violence, pending divorces, sexual partners, personal health, future employment plans, and even characterizations of some employees as alcoholics. The employees filed suit, in part, for publicity of a private fact. The trial court entered summary judgment for the defendants. The Appellate Court of Illinois stated the information could be viewed as private because the agents obtained it through
deception, communication to the employer could be considered publicity, and its disclosure might be highly offensive to a reasonable person. The appellate court reversed and remanded the issue to the trial court.
Note that the commenting about a private fact in front of others does not always mean the speaker has given publicity to the matter. In Dietz, a jewelry clerk was
“interrogated” about an unauthorized discount provided a customer who was upset about the length of time it took to be served.69 During her interview, the company investigator stated that Dietz had personal credit problems. Present in the room was a female manager who was serving as a witness and a security officer who was monitoring the CCTV (closed circuit television) system and was not a party to the session. The court denied that the reference to her credit difficulties with the two employees present amounted to publicity of a private fact. The Court of Appeals of Indiana affirmed summary judgment in favor of the defendants on this issue.
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In Shattuck, the plaintiff, who worked at a resort, was raped while on break and the attack was captured on video.70 The company immediately reported the incident to the police. In order to determine if the rapist was an employee, the company showed the video to select managers. It also showed the tape to another rape victim (who was not attack
ed at the resort) and the police officer investigating that case.
The plaintiff claimed this showing was an unreasonable publication of a private fact. The Supreme Court of Utah ruled the company’s showing of “the video to a
discrete number of persons for the legitimate purposes of a criminal investigation”
did not qualify as a public disclosure.
7.7.4.2.3 Intrusion upon Seclusion
Intrusion upon seclusion refers to an intentional intrusion by another upon the physical solitude or private affairs of another that is unreasonable and highly offensive to a reasonable person.71 Employees enjoy a degree of privacy in the workplace, but the level of privacy afforded them must be balanced with the legitimate interest of the employer in running its business. There is a long list of intrusion of seclusion cases on a variety of issues that impact workplace investigations. The following cases cover traditional off-premise and onsite cases, and more recent cyber privacy issues.
In Johnson v. Corporate Special Services, Inc., a contract investigator staked out the plaintiff’s house to observe if the plaintiff was engaging in any physical activity that would disqualify him from receiving benefits under workers’ compensation.72
As the court noted, at no time did the investigator try to observe or peek into the home. One evening, during the surveillance, the investigator was questioned by the police. He was asked to explain his presence, which he did. The plaintiff noticed this encounter and continued to watch the investigator who relocated to another close-by spot. The plaintiff, subsequently, pulled his car in front of the investigator’s vehicle and confronted the investigator, who pulled his weapon and withdrew.
The plaintiff sued for assault and battery, and invasion of privacy. The trial judge granted summary judgment on the invasion of privacy claim in favor of the defendant and the jury found in his favor on the assault and battery claim. The plaintiff appealed the invasion of privacy claim. In affirming judgment for the investigative firm, the Supreme Court of Alabama used a two-part test: it looked at the “means”
of intrusion and “purpose” of the intrusion. It stated parties to personal claims should expect some investigation into their claims and loss of privacy related to the claim. It found that the purpose of the investigation was lawful and the outside surveillance did not intrude into the privacy of his home.
However, not all outside investigations are reasonable or lawful. In Souder, the Court of Appeals of Louisiana held the plaintiff, who had filed a workers’ compensation claim, did state a privacy cause of action against investigators for the constant surveillance of his home, use of binoculars, trespass to property, and peeping into windows.73 The last conduct was in violation of the state “Peeping Tom” statute
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and the court noted that any investigation outside the lawful bounds of state law is unreasonable.
The Georgia Court of Appeals, in Stevens, found similar conduct by detectives, conducting surveillance of a plaintiff in an automobile accident case, actionable.74
The investigators peeped through hedges adjoining her property, trespassed upon her property, peeped into windows, eavesdropped upon conversations, and cut a
hole in the hedges, and closely followed her about in public areas. They were so aggressive and blatant in their tactics that her neighbors became suspicious of and shunned her. Even after being advised by legal counsel for plaintiff of the emotional duress caused, the intensity and tactics of the investigators did not change.
But, in Saldana, the Court of Appeals in Michigan ruled it was not an intrusion upon the privacy of an employee, who was subjected of malingering on disability, when investigators watched his home, walked by the house to look in open windows, observed the home with a telephoto camera, talked with the garbage pickup crew, and pretended to be a process server to look inside the home.75 One justice on the three-judge panel dissented on the issue of the camera use, as he felt it created a triable issue of fact. Interestingly, the investigator sent a letter to the employee’s physician, but, fortunately for the investigator, the doctor never replied.
In another off-premise case, Sowards, the Court of Appeals of Ohio affirmed it was an intrusion of privacy when an employer searched a hotel room it had reserved for an employee–driver who used the same room on a regular basis.76 The court
noted the employee had a reasonable expectation of privacy because he was the only person in the room, he had a key to it, and it was not used for company business. The court also rejected the good faith investigation defense of the company because an invasion of privacy need not be made maliciously or intentionally to be actionable.
Fact finders also need to be sensitive to their activities in the workplace. The seminal office search case is not a private sector case. In fact, the case is based upon the Fourth Amendment of the U.S. Constitution (which we know does not apply
to private sector searches unless there is state action). But, it was decided by the U.S. Supreme Court and the underlying logic of the case has been used as a frame of reference by many courts.
In O’Connor, a state hospital searched the desk, filing drawers, and office of a physician who had used the office for over 17 years.77 There was debate whether it was investigative (into professional improprieties including sexual harassment) or noninvestigative (inventorying state property). The U.S. Supreme Court noted the protections of the Fourth Amendment apply to noncriminal searches. However, it
ruled the requiring of public employers to obtain a warrant and to establish probable cause to conduct workplace searches was too cumbersome. Instead, in order to balance the government employee’s “not insubstantial” expectation of privacy with the “substantial government interests in the efficient and proper operation of the workplace,” the court adopted a two-part reasonableness standard:
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Under this reasonableness standard, both the inception and the scope
of the intrusion must be reasonable; Determining the reasonableness of
any search involves a twofold inquiry: first, one must consider “whether
the … action was justified at its inception,” … second, one must deter-
mine whether the search as actually conducted “was reasonably related
in scope to the circumstances which justified the interference in the
first place.”
Although this decision dealt with the application of the Fourth Amendment
to government employer searches, the logic of the U.S. Supreme Court provides
strong guidance toward determining the reasonableness of private sector searches as well.
In Simpson, discussed earlier, an employee refused to participate in a lunchbox inspection because he strongly felt it violated his human and constitutional rights of privacy.78 After having rejected the constitutional arguments, the Commonwealth Court of Pennsylvania looked at his property right of privacy in his lunchbox versus the reasonableness of the employer’s request. Concluding the request to inspect was reasonable, based upon past practice even without a written policy, the court stated Simpson had a duty to cooperate and his failure to do so could not “be predicated upon asserted common law personal and property rights … the employee has
waived those rights as a basis for noncompliance; he waived them when he volun-
tarily assumed the legal relationship with his employer.”
In Clement, the defendant company, without admission of fault, settled a claim that it had invaded the privacy of plaintiffs when it, based upon rumors of employee drug use, placed a concealed camera in a men’s locker room.79 In Trotti, managers opened an employee’s locker and searched her purse while looking for a missing
watch, which they had no reason to believe she had taken, and a missing price-
marking gun.80 Because the employee was allowed to put her lock on the locker and the company did not advise employees the lockers were subjec
t to search, despite the manager’s claim it did, the court felt there was sufficient evidence the employee had a reasonable “expectation that the locker and its contents would be free from intrusion and interference.” The Court of Appeals of Texas further affirmed there was sufficient evidence the employer acted with malice when the manager originally denied the search and misrepresented that employees were advised of the
search policy. (Note, the court reversed the trial court judgment in favor of the plaintiff on grounds the jury instructions were deficient and it remanded the case for a new trial.)
In Johnson v. K Mart, also discussed earlier, the undercover agents reported on the personal lives of the employees, and the court held they had stated a cause of action for publication of a private fact.81 The court also found that the employees had a cause of action for intrusion upon seclusion. It felt there was sufficient evidence that a jury might find the methods and scope of the investigation to be an offensive intrusion. Specifically, the court expressed concern about personal
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information being gathered on and off company property, about it being gathered by deception, its lack of relevancy to the legitimate interests of the business, and the company never stopped this practice. It reinstated the employees’ privacy claim.
McLaren is one of the first email cases to deal with employee privacy as it relates to an internal company investigation.82 The company suspended the employee
pending a sexual harassment and inventory investigation. He requested access to his email to gather evidence to disprove the allegations against him. He also asked that the company not tamper with his workstation and email files. Subsequently, he filed suit for invasion of privacy. He claimed the software allowed him to password protect his email files (separate from the network password protection) and that this protection gave him an expectation of privacy, symbolically speaking, similar to the expectation Trotti enjoyed in a company locker once she put her personal lock on it. He argued that the decryption of his password and distribution of it (presumably to other company employees) by the employer represented a serious
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