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Workplace Solutions: When Investigations Go Undercover

Workplace Solutions: When Investigations Go Undercover

Question

Four months ago, my boss asked me to help train a new employee. She was personable, and we hit it off. Soon we were exchanging details ofworkplace, investigations, theft our lives and frequently ate lunch together.

What I didn't know at the time was that she was a private investigator my employer hired to pose as an employee to investigate theft. I confided in this woman I considered my friend that I was looking for a new job and planned on quitting without notice as soon as I got lucky. I also told her about my gay partner, our hopes to marry in a different state and my son's drug problems.

She let my manager know I was searching for a new job, and he fired me. At the time, I thought maybe someone at one of the companies to which I'd applied for work had leaked my job search activities to him.

Then the theft investigation came to light. One of the employees had an attorney brother who put the whole story together.

I tried to reach my supposed friend to ask why she'd done this to me, as I wasn't one of the thieves. What else had she revealed, I wondered. Since my employer authorized this investigation and fired me based on something I said in confidence that had nothing to do with theft, do I have a privacy or retaliation claim? Is all my personal information sitting in a big file somewhere?

Answer

Employers have the right to investigate theft and to use undercover investigators. You have the right to personal life privacy. Although you opened the door when you talked with a coworker, you had no idea she served as a pipeline to your boss. There's a fairness issue here and employers need to observe the covenant of good faith and fair dealing in all employee actions.

While your employer and the investigator can make a case that your plan to quit without notice was directly workplace related, your son's issues and wedding plans aren't. You don't know, however, if the investigator disclosed this personal information or simply what she considered workplace relevant.

A federal court ruled on similar overlapping rights in a lawsuit brought against K Mart. When K Mart experienced sabotage, theft, vandalism and drug use at one of its stores, the K Mart general manager hired an undercover investigator and his wife as employees and told them to gather information on theft and drug use.

The couple submitted handwritten reports several times weekly. The reports contained information about employee sex lives and romantic interests; employee family matters such as pending divorces, domestic violence and criminal conduct by family members; complaints about K Mart and information about which employees were looking for new jobs.

The general manager didn't tell the couple to stop providing him with non-workplace related information. When a terminated human resources manager leaked information about the investigation to employees, the investigation became a central issue in a Teamsters organizing campaign. The union let employees know what management was reading about them by distributing copies of the reports.

Finding their personal lives exposed, 55 current and former employees sued K Mart for this privacy invasion. The Court considered these issues: was the prying an unauthorized intrusion into private lives; was it offensive to a reasonable person, and did the intrusion cause anguish and suffering.

K Mart claimed the employees willingly provided personal information to the investigators and thus the prying wasn't unauthorized. The employees countered that they had talked to individuals they considered co-workers, not realizing their words would be transmitted to their employer and thus this constituted an unauthorized intrusion. They argued information gathered using deceptive means couldn't be considered voluntary and noted that some information was gathered at social gatherings outside the workplace.

Ultimately, the Court concluded that the employees didn't have a case against K Mart as the employees experienced stress and distrust but not "anguish and suffering." The Court additionally noted that the employees should have sued the private investigators rather than K Mart.

If you sue, you may be able to find out what information sits somewhere in a file. Chances are, however, unless the investigator was as sloppy as those involved with K Mart, the investigator only turned over information directly related to the workplace - your intent to quit without notice.

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Lynne Curry, Ph.D., SPHR and owner of the Alaska-based management consulting firm, The Growth Company Inc. consults with companies and individuals to create real solutions to real workplace challenges. Their services include HR On-call (a-la-carte HR), investigations, mediation, management/employee training, executive coaching, 360/employee reviews and organizational strategy services. You can reach Lynne @ www.thegrowthcompany.com, via her workplace 911/411 blog, www.workplacecoachblog.com or @lynnecurry10 on twitter.

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