MCLE Article and Self-Assessment Test Take No Prisoners
Tape-recording employee investigatory meetings is the best protection against false imprisonment claims
By Paul M. Gleason and Daniel Weisberg
Paul M. Gleason and Daniel Weisberg are labor and employment attorneys in the Los Angeles office of Brobeck, Phleger and Harrison, where they represent employers. The authors acknowledge Thomas P. Burke, the partner in charge of Brobeck's Los Angeles labor and employment practice, for his invaluable insight and guidance in the preparation of this article.
Prior to the decision of the California Supreme Court in Fermino v. Fedco Inc.,(1) courts routinely dismissed employee claims for false imprisonment on the ground that the California Workers' Compensation Act provided the exclusive remedy for these claims.(2) In Fermino, however, the supreme court held that the exclusivity provisions of the act did not preclude claims of false imprisonment by an employee against an employer.(3)
One result of Fermino and its surrounding publicity has been an increase in the number of false imprisonment claims brought by employees. Before Fermino, false imprisonment claims arose only occasionally in the employment context--typically when an employer detained an employee suspected of theft. Now, however, false imprisonment claims are arising in cases of routine terminations for misconduct. No longer able to rely upon the exclusivity of workers' compensation as a defense, employers and their attorneys must come to grips with the task of defending false imprisonment claims on the merits. The best preventive measure and a solid defense strategy for employers is to establish an unassailable factual record of events that could lead to claims of false imprisonment.
Fermino involved a claim for false imprisonment by a female salesclerk employed in Fedco's jewelry department. In her complaint, the plaintiff alleged that the store's personnel manager summoned her to a windowless room, where she was interrogated by the personnel manager, the store's loss prevention manager, and two security agents concerning her alleged theft of the proceeds of a $4.95 sale to a customer. The plaintiff further alleged that one of the security agents told her the theft had been witnessed by a customer and an employee, who were waiting in another room. The security agent also told the plaintiff that she could handle this the "Fedco way" or the "system way": under the Fedco way, each time the plaintiff refused to confess she would be awarded a point until she reached 14 points; then the system way would commence and she would be handed over to the police. Throughout the interrogation, each time the plaintiff protested her innocence, the security agent responded by saying, "one point." In addition, the loss prevention manager "'hurled profanities' and demanded that [the plaintiff] confess."(4)
The plaintiff further alleged that she was held in the room for more than one hour, and her repeated requests to leave the room and telephone her mother were denied. She also claimed that, at one point, she "rose out of her chair and walked toward the door of the interrogation room in an attempt to leave" and that one of the security agents "slid in front of the door, threw up a hand and gestured her to stop." As a result of the interrogation, the plaintiff "became hysterical, and broke down in tears." At last her interrogators told the plaintiff that there was no employee or customer waiting to testify against her; they believed her and she was free to leave.(5)
Notwithstanding the egregious nature of the allegations in Fermino, the trial court sustained demurrers to the plaintiff's cause of action for false imprisonment, ruling that it was barred by the exclusive remedy provisions of the Workers' Compensation Act. The case went to the supreme court after the dismissal was affirmed by the court of appeal. The supreme court noted that "reasonable attempts to investigate employee theft, including employee interrogation, are a normal part of the employment relationship" and, therefore, cannot result in claims outside of the workers' compensation system.(6) The court reversed the court of appeal, however, by ruling that employer conduct rising to the level of "involuntary detainment" is "always outside the scope of the compensation bargain" and can form the basis of a common-law action by the employee against his or her employer.(7)
The holding in Fermino leaves employers, and the attorneys who give them advice, in a difficult position. The Fermino court acknowledged "the right of an employer to reasonably detain an employee suspected of theft."(8) At the same time, however, the court dramatically expanded the ability of employees to sue for false imprisonment by holding that an employee who alleges he or she was subjected to an unreasonable confinement may evade the exclusivity provisions of the Workers' Compensation Act. As a result, employers investigating suspected incidents of theft or other misconduct must walk a tightrope as they try to avoid tort liability while still pursuing a vigorous inquiry.
One way for employers to guard against false imprisonment claims without sacrificing the ability to thoroughly investigate employee misconduct is to tape-record disciplinary and investigatory meetings. Tape-recording interrogations of employees may seem a drastic step because the risk of a false imprisonment claim may appear slight. After all, most employers rarely will have a need to conduct a theft investigation, and fewer still would confine an employee in a windowless room. However, an examination of the elements of a false imprisonment claim, and the related defenses, reveals that the tort can be alleged and maintained relatively easily, in a variety of situations much milder than in Fermino, with its allegations of gestapo tactics.
False imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.(9) The civil and criminal definitions of false imprisonment are the same.(10) False imprisonment results when a person acts to confine another individual or knows with substantial certainty that these actions will result in confinement.(11) False imprisonment requires restraint against a person's will.(12) Involuntary restraint occurs when a person is compelled to stay in or go to a place contrary to that person's wishes.(13)
Either express or implied force must be used to effect the restraint.(14) So physical force is not the only type of restraint that will support a finding of false imprisonment.(15) Restraint may be shown by evidence of words, gestures, or acts that cause a person reasonable apprehension that he or she will not be permitted to leave.(16) As noted in Fermino, "threat of force or of arrest" are both sufficient to establish restraint.(17) Consequently, a false imprisonment claim may arise from a seemingly innocuous situation, such as a manager telling an employee that he or she "is not leaving this office until I get some answers."
The law does recognize that certain reasonable detentions by an employer may be privileged where the employer has probable cause to believe that "another is taking his property."(18) In 1976, this "merchants' privilege" was codified.19 Section 490.5(f) provides that a merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe that the person to be detained is attempting to or has unlawfully taken merchandise from the merchant's premises.(20) However, the statute's definition of a merchant as "an owner or operator, and the agent, cosignee, employee, lessee, or officer of an owner or operator, of any premises used for the retail purchase or sale of any personal property capable of manual delivery"(21) renders the statutory privilege unavailable to the large majority of employees who are not involved in retail businesses.(22)
A merchant qualifying for the privilege may use a reasonable amount of non deadly force for self-protection or to prevent the escape of the person detained or the loss of property.(23) Accordingly, as a defense to a false imprisonment claim, a merchant may assert that he or she had probable cause to believe that the person detained had stolen or attempted to steal merchandise and that the merchant acted reasonably under the circumstances.(24) Therefore, the statutory privilege would not seem to allow detentions for the purpose of investigating the types of malfeasance, such as misdirection of funds, that do not involve a direct theft of merchandise.
While most commonly applied to detentions by store owners of customers suspected of theft, the privilege may also permit employers to subject employees to a reasonable detention in circumstances where the employer has probable cause to believe the employee is taking the employer's property.(25) However, detentions that go beyond investigating theft and seek to obtain a confession or restitution have been held to be outside the boundaries of the reasonable detention permitted by the privilege.(26)
The privilege not only applies to a relatively small category of employers in a relatively narrow set of situations, but even when it does apply, it is generally not effective as a means of obtaining dismissal before trial. Whether or not probable cause existed for detention is a question of law.(27) However, the reasonableness of the detention is a jury question.(28) Consequently, even if there is no dispute as to probable cause, a false imprisonment case will reach a jury on the issue of reasonable detention.(29)
Given the relative ease with which an employee may reach a jury on a cause of action for false imprisonment, employers must take steps to prevent claims of false imprisonment from arising in order to keep litigation costs at a minimum.
Employers can reduce the risk of liability for false imprisonment, as well as deter employees from bringing such claims, by doing a better job of making a record of the meetings that can spur these claims. Disciplinary and investigatory meetings, particularly those involving suspicions of theft or embezzlement, carry a significant risk of creating allegations of false imprisonment.
Tape-recording such meetings will create the strongest record and, therefore, will be the most effective way, in most cases, for employers to prevent false imprisonment claims. Through the effective use of tape-recording, employers can create an unassailable record of all that was said during a disciplinary or investigatory meeting. The tape may be used later to dissuade an employee and his or her prospective counsel from bringing a lawsuit; at a minimum, the recording places the employer in a strong position to defend its interests in the event a suit is filed.
Employers typically document disciplinary meetings through memoranda or written warnings that are issued to the employee and placed in the employee's personnel file. This documentation is much less effective than audiotape in deterring and defending false imprisonment claims. Employers generally will not include in the memos or warnings facts establishing that the employee was not detained. Also, the employee often refuses to sign the warning, allowing the employee to argue later that he or she never received it or the contents of the warning are not accurate. The presence of a witness at the meeting who can attest to the memo's authenticity generally does not solve the problem, because the witness usually is a supervisor whose impartiality will be questioned.
Of course, tape-recording a meeting where a company supervisor is confronting an employee may produce mixed results, as all statements made during the investigation will be preserved for all to hear in any subsequent dispute. For this reason, employers should be thoroughly counseled regarding the potential risks of tape-recording and advised that tape-recording should only take place when the employer is confident that the interrogator is capable of conducting an interrogation devoid of any discriminatory or other inculpatory statements that could subject the employer to liability.
In addition, before adopting a policy to tape-record all disciplinary meetings with employees, employers should be aware that significant restrictions exist on the recording of confidential conversations. Penal Code Section 632(a) prohibits any person from intentionally and without the consent of all parties recording a confidential communication by means of any electronic amplifying or recording device. Excluded from the prohibitions of Section 632 are those persons who are "known by all parties to a confidential communication to be overhearing or recording the communication."(30) Violators of the provision are subject to a fine of up to $2,500 and imprisonment in a county jail for up to one year, or both. Furthermore, victims of Section 632 violations may bring civil actions against violators and are entitled to injunctive relief and money damages of $5,000 or three times actual damages--whichever is greater.(31)
Employers should be scrupulous in determining whether disciplinary or investigatory meetings with employees are confidential conversations covered by Section 632 as well as to what extent the express consent of all parties must be obtained.
A "confidential communication" is defined by the statute to include "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in any circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded."(32)
While the decisions interpreting this language have been fact-specific, they indicate that disciplinary or investigatory meetings between managers and employees likely will be considered confidential within the meaning of Section 632. In Coulter v. Bank of America,(33) an employee brought an action against his employer, supervisors, and coworkers alleging sexual harassment. The defendants brought a cross-complaint against the employee for violation of Section 632 based on the employee's admitted covert tape-recording of more than 160 private conversations with his supervisors and coworkers.(34)
The court of appeal affirmed the grant of summary adjudication against the employee on the privacy claims, finding that the taped conversations were confidential.(35) The conversations generally took place in private offices with only the employee and the other party present. The defendants submitted declarations stating that they intended the conversations to be confidential, and none of them had given express consent to the recording.(36) In fact, one defendant, suspecting that the employee was taping their conversation, told the employee that he did not consent to being recorded.(37)
The court rejected the employee's argument that he did not intend the conversations to be confidential and thus Section 632 did not apply. Instead, the court held that the "test of confidentiality is objective," so that if either party reasonably expects confidentiality, the conversation is protected.(38) The employee further argued that because it should have been reasonably expected that the conversations would be repeated to other employees, they were not protected. The court ruled to the contrary: the fact that the conversation might be related to others at a later date had "no bearing" on whether it was confidential. As long as one of the parties has a reasonable expectation that no one is "listening in" or overhearing it, the conversation is confidential.(39)
Based on the holding of Coulter, employers can assume that ordinary disciplinary or investigatory meetings with employees will be protected by Section 632. These meetings generally will be held in private offices, and most employees will reasonably expect that the subject matter will not be repeated widely.
However, under Section 632(b), a person can record a confidential communication if all participants know that he or she is recording the conversation.(40) Therefore, as long as the employee (and anyone else present) knows that a disciplinary meeting is being taped, Section 632 is not violated.(41)
Managers should inform employees scheduled to be interviewed as part of a misconduct investigation that the conversation will be tape-recorded both to preserve all the information and avoid any disputes about what was said. Employees generally do not refuse to be taped--most because they are willing to aid the process, and some possibly because they want to act as if they have nothing to hide.
If an employee refuses to be taped, the manager should inquire about the reasons for the refusal and explain again the purpose of the recording. If the employee continues to refuse, the manager most likely should proceed with the unrecorded conversation, in the presence of a witness, while simultaneously creating a written record of what is said. The written record should include a statement that the meeting was voluntary and that the employee understood and agreed that he or she was free to leave at any time. The employee as well as all others present should sign the written memorialization at the close of the meeting.
The manager's other option is to refuse to proceed without recording the meeting and then discipline the employee without hearing the employee's side of the story. This clearly is a risky decision, however. If the employee is terminated or disciplined for alleged misconduct without being given a chance to provide an explanation, the termination may appear unfair to a judge or jury.
A recent court of appeal decision, Nagy v. Whittlesey Automotive Group,(42) illustrates the dangers of attempting to force an employee to consent to taping. In Nagy, the defendant car dealership allegedly requested that the plaintiff, a salesman, consent to have telephone conversations with potential customers recorded as part of a sales-training program. The plaintiff refused, and Whittlesey recorded the conversations anyway. Then Whittlesey again demanded that the plaintiff sign a consent form. When the plaintiff refused to comply a second time, he was fired for having a "negative attitude."
The court of appeal reversed the trial court's dismissal of the plaintiff's Section 632 claim and his wrongful termination claim. The court noted that "[e]ven if coerced consent is a defense to criminal charges brought under [Section 632], such consent would not ameliorate the public policy violation [involved in terminating the plaintiff for refusing to consent to the taping of his conversations]."
Nagy serves as a good warning that, while taping can be a useful tool for employers, the concept should not be pushed too far. If an employee cannot be persuaded to allow his or her conversations to be taped, the employer will have to settle for more traditional methods of memorializing conversations.
Thus, employers seeking to tape-record investigatory meetings should proceed, but with caution. The best approach blends practical techniques with the lessons of Fermino:
- Test the equipment to make sure it records the voices of all participants clearly. Try to keep participants in the meeting from speaking simultaneously, too quickly, or too softly. These actions will serve to avoid disputes regarding what was said on tape.
- Record the employee's acknowledgement that the conversation is being taped. If the employee refuses to be taped, take extensive notes of the conversation and attempt to have the employee sign an acknowledgement of what was said. These actions will help to prevent any Section 632 problems while also ensuring that the conversation will be well documented.
- Make it clear that the employee can leave at any time. An unambiguous statement of this fact should prevent allegations of false imprisonment. This is especially important in a situation that appears intimidating to an employee, such as in Fermino, where a young female employee was confronted by several male managers. However, employees facing discipline can be cautioned that if they choose to leave, the decision regarding discipline may be made without their input.
- If the employee admits to misconduct, make sure that the admission is unequivocal. Don't allow employees to get away with statements such as "it sure looks like I did it." A smart attorney will argue that such a statement does not constitute an admission. Press such an employee to state whether or not he or she actually engaged in the misconduct.
- Avoid threats of arrest and/or police involvement. The Fermino case illustrates that such threats can lead to a finding of intentional confinement.
- Record interrogations only when the employer knows that the questioner has been trained to avoid discriminatory or other incriminating statements that may come back to haunt the employer.
Private investigators can be very useful, especially for large-scale investigations. But employers should be careful to select only reputable agencies and monitor their conduct during investigations. Private investigators also should be instructed to follow the best-approach guidelines listed above, because any tortious acts or inculpatory statements made by the investigator may be imputed to the employer.
Tape-recording disciplinary or investigatory meetings will be helpful beyond the defense of false imprisonment claims. For employees suspected of misconduct, any admissions or demonstrably false statements they make will be conclusively preserved. For witnesses not suspected of wrongdoing, tapes will serve to document the evidence uncovered during an investigation. This evidence may be important to demonstrate the thoroughness of the employer's investigation, a helpful factor in defending against sexual harassment claims. In addition, the tapes will provide support for the action the employer takes against the wrongdoer at the conclusion of the investigation. Audiotaped records of conversations with employee witnesses also will be valuable to lock witnesses into positions that they may forget or wish to alter months or years later when they will be needed during litigation.
Many wrongful termination claims are based, at least in part, on allegations that discriminatory or other actionable statements were made by a manager to an employee at the time of the termination. For example, a plaintiff alleging age discrimination might offer as evidence an alleged statement by the president during the dismissal meeting that the employee was being terminated because "we need some young blood in this office." An audiotape of the termination or other disciplinary meeting will provide an effective defense to this type of claim (assuming these meetings are conducted appropriately).
Most employers quite properly will not want to audiotape every routine disciplinary or investigatory meeting. The use of a tape recorder can create an intimidating environment, intentional or not, that employees may find objectionable. However, in sensitive cases, such as those involving investigations of major theft, drug or alcohol use, embezzlement or fraud, or where the employee involved is known to be particularly litigious, employers should consider tape-recording the conversations. Taking care to properly document the employee's consent to the tape recording, the voluntariness of the interrogation, as well as any admissions made by the employee during the meeting, will help the employer to avoid costly litigation.
- Fermino v. Fedco, Inc., 7 Cal. 4th 701 (1994).
- Lab. Code Section 3600, et seq.
- Fermino, 7 Cal. 4th at 723.
- Id. at 706, 707.
- Id. at 717.
- Id. at 723.
- City of Newport Beach v. Sasse, 9 Cal. App. 3d 803, 810 (1970).
- Parrott v. Bank of America Nat. Trust & Savings Ass'n., 97 Cal. App. 2d 14, 22 (1950).
- Du Lac v. Perma Trans Prods., Inc., 103 Cal. App. 3d 937 (1980).
- Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092 (1988).
- Collins v. County of Los Angeles, 241 Cal. App. 2d 451 (1966).
- People v. Zilbauer, 44 Cal. 2d 43, 51 (1955).
- Schanafelt v. Seaboard Fin. Co., 108 Cal. App. 2d 420, 423 (1951).
- Fermino, 7 Cal. 4th at 715.
- Parrott, 97 Cal. App. 2d at 23.
- Pen. Code Section 490.5(f) (1995).
- Pen. Code Section 490.5(f) is founded upon a property owner's common-law right of detention when the owner has probable cause to believe that the detainee is or will be engaged in acts to injure or steal the owner's property. Collyer v. S. H. Kress & Co., 5 Cal. 2d 175, 180 (1936); Alterauge v. Los Angeles Turf Club, 97 Cal. App. 2d 735, 737 (1950). This common-law right also was codified for employees of libraries, museums, and public-records repositories. Pen. Code Section490.5(f)-(g).
- Pen. Code Section490.5(g)(2).
- The extent to which a broader common-law privilege survives the enactment of Pen. Code Section 490.5(f) is not clear from the relevant case law.
- Pen. Code Section 490.5(f)(2).
- Pen. Code Section 490.5(f)(7).
- Parrott, 97 Cal. App. 2d at 23.
- Collyer, 5 Cal. 2d at 180-81.
- Fermino, 7 Cal. 4th at 723.
- Pen. Code Section 632(b).
- Pen. Code Section 637.2. Subsection (c) provides that neither actual damages nor the threat of them are necessary for an action brought under Section 637.2.
- Coulter v. Bank of America, 28 Cal. App. 4th 923, 33 Cal. Rptr. 2d 766 (1994).
- Id., 28 Cal. App 4th at 925.
- Id. at 929.
- Id. at 926-27.
- Id. at 927.
- Id. at 929.
- Id. But see O'Lasky v. Sortino, 224 Cal. App. 3d 241 (1990)(tape of investigator/employee telephone conversation where the investigator posed as a game-show producer was not excludable under Pen. Code Section 632 because the employee had reason to believe that the conversation would be broadcast over cable television).
- See Olsen v. Superior Court, 63 Cal. App. 3d 188, 191 (1976) (a participant in a confidential telephone conversation is exempt from Pen. Code Section 632 if the other participant knows the conversation is being recorded).
- Federal law also limits the use of recording equipment to tape confidential conversations. 18 U.S.C. Section 2511. However, the law allows for the recording of confidential conversations when only one of the parties has given prior consent. 18 U.S.C. Section 2511(2)(d).
- Nagy v. Whittlesey Automotive Group, 95 Daily Journal D.A.R. 16235 (Dec. 11, 1995).
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