Employers investigate employees for a multitude of reasons. The United States Supreme Court's recent sexual harassment cases, for example, permit an employer to escape liability by taking prompt and appropriate remedial action.1This invariably requires an investigation as to whether harassment occurred and, if so, how it should be corrected.2
Even outside the context of sexual harassment allegations, however, employment investigations are commonplace. Employers regularly investigate employees to deter theft and shirking, to secure compliance with state and federal anti-discrimination statutes, and to select among applicants for jobs and promotions.3
Workplace investigations may, however, present an employer with problems as significant as those to be remedied by the investigation. Even a cursory investigation can expose the employer to liability for torts such Page 32 as invasion of privacy, false imprisonment and intentional infliction of emotional distress. Specific investigative techniques can expose the employer to liability under statutes such as those regulating polygraphs and wiretapping. Publicizing the results of the investigation - which the employer may want to do both to reassure good employees and to deter future misconduct - could expose the employer to liability for defamation.
This article analyzes the law related to workplace investigations. Although it focuses on Ohio law, its precepts are equally applicable in other states as well. The article is designed for employers that wish to avoid liability during the course of workplace investigations, for legal counsel or private investigators who conduct employment-related investigations, and for legal counsel who represent employees who have been the subject of workplace investigations.
Part II of this article reviews Ohio law as it relates to the torts of false imprisonment, assault, defamation, intentional infliction of emotional distress and invasion of privacy. Each of these torts affects the employer/employee relationship, and each limits the employer's ability to conduct a workplace investigation.
Part III applies these torts to nine specific methods of employment investigations: background checks and credit reports; questioning employees; workplace searches; interception or search of postal and electronic mail; surveillance and monitoring; drug and alcohol tests; polygraph tests; and publication by employers of employee misconduct. This section provides details as to what the employer can and cannot do, and the consequences of exceeding those limits.
Part IV provides strategies for an employer planning a workplace investigation. First, it discusses how the attorney-client privilege and the work product doctrine can be used to protect the fruits of an employment investigation from discovery in subsequent litigation. Second, it discusses how and why an employer should limit state action in an investigation if the employer wants to preserve the admissibility of the investigation in a subsequent criminal proceeding. Third, this Part discusses the Fair Credit Reporting Act, which gives substantial procedural protections to employees who are the subject of an employment investigation by a third party such as an independent investigator or perhaps an outside attorney.
The tort of false imprisonment occurs when a plaintiff is deprived of his or her liberty without lawful justification.4To prevail in a false imprisonment action, the plaintiff must show that he was detained and that Page 33 the detention was unlawful.5The plaintiff is not required to prove malice, motive, or lack of probable cause.6While that short explanation identifies the essence of the tort and the plaintiff's burden of proof, the tort may be better understood by reviewing its elements. As the Ohio Supreme Court defines it, false imprisonment consists of: (1) intentional confinement of the plaintiff within a limited area (2) against his consent (3) without lawful privilege for (4) any appreciable time, however short.7
The tort of false imprisonment is often used interchangeably with false arrest, and both involve the same elements. However, the torts differ in the way the causes of action arise.8False arrest includes false imprisonment, but the detention of false arrest occurs under the color of legal authority.9
False imprisonment, on the other hand, is purely a matter between private parties; there is no intent on the part of the alleged tortfeasor to bring the detained person before a court or otherwise secure administration of the law.10In the employment context, these causes of action most frequently arise when employees are detained and/or arrested for theft.11
Because most employers infrequently act under color of state authority and therefore are unlikely to encounter a false arrest claim, this article explains the elements as they apply to false imprisonment. However, the fourth element will not be discussed separately because if the plaintiff proves he or she was detained and the detention was unlawful, the duration of the detention can be any appreciable time.12
False imprisonment is an exclusively intentional tort.13For liability to attach, the defendant must act intending to confine the plaintiff within boundaries set by the defendant, and the act must directly or indirectly result in such confinement.14Confinement is defined as total detention or restraint of the plaintiff's freedom of movement, imposed by force or threats.15The defendant must also be conscious of the confinement or be Page 34 harmed by it.16Finally, if the act is not done with the intention of confining the plaintiff, and the confinement is merely transitory or otherwise harmless, the defendant is not liable for false imprisonment.17
The Restatement (Second) of the Law of Torts provides a hypothetical situation to further explain. A shopkeeper, at closing time, sends an employee into the freezer to conduct an inventory. Forgetting that the employee is in the freezer, the shopkeeper locks the door and departs the store. Within moments, he realizes that he locked the employee in the freezer and immediately returns to release him. The shopkeeper is not liable for false imprisonment because he did not intentionally lock the employee in the freezer.18However, a longer period of confinement resulting in physical harm to the employee could subject the shopkeeper to liability for negligence.19
A case from the Montgomery County Court of Common Pleas follows these principles. In Bailie v. Miami Valley Hospital,20the father of an eight-year-old female patient of the hospital brought an action for false imprisonment on behalf of his daughter. The complaint alleged that the hospital unreasonably and unlawfully detained the daughter on the day scheduled for her release.21When the mother attempted to pick up her daughter, the nurse directed the mother to the cashier's office to obtain a dismissal slip.22When the plaintiff's mother arrived, the cashier noticed the insurance policy in the mother's possession named her husband as the insured, not the daughter.23The cashier then referred the mother to the credit manager to make alternate arrangements to pay for the daughter's care.24Upon signing a note to pay the bill within 30 days, the mother received a dismissal slip.25
The father sued the hospital for the false imprisonment of his daughter during the period that the hospital withheld the dismissal slip.26The trial court granted a directed verdict for the defendant, and plaintiff moved for a new trial.27In overruling the motion, the court cited several factors leading to denial of the motion. First, the hospital did not intend to keep Page 35 the daughter in the hospital if the bill was not paid, nor did the defendant make any threats to confine the daughter at that location.28Therefore, there was no detention of the plaintiff.29Second, the court stated that even if there was a detention, it was not for an unreasonable time (forty-five minutes) nor under unreasonable...