Employee Misconduct Investigations: Getting to the Truth Without Getting Into Trouble

by Kathleen A. Kedigh¹

This article describes actions that employers may take to investigate employee misconduct without incurring liability.

A client's employee, Helen, calls you one morning to tell you about a copy of a charge that she just received from the Equal Employment Opportunity Commission. A female subordinate, Karen, had complained two months ago about Marv, a male co-worker. Helen had gone on vacation after she talked with Karen and forgotten about her complaint.

Karen reported that Marv was calling her and e-mailing her several times a day at work. During these contacts, he made obscene comments and propositioned her. She asked him to leave her alone, but he simply wouldn't take no for an answer. She said that she had seen him looking at pornographic magazines at work and caught a glimpse of a pornographic web site when she walked by his cubicle.

Your client wants to review Marv's e-mails, examine his Internet usage, wire-tap his phone, search his office, and interrogate him with the help of a friend who is a city police officer. Marv said that he doesn't want to talk to Helen; but if he is forced to do so, he has asked if his attorney and a co-worker can attend the investigatory meeting. She wants your advice. What do you tell her?

Employee misconduct investigations can eliminate liability in some cases. Or they can create liability by adding claims or increasing damages. Many times employers become incensed by suspicion and, in an effort to root out the wrongdoer, cross legal boundary lines. They will go to any length to get to the truth. And sometimes, in getting to the truth, they get into trouble. So before employers put on their Sherlock Holmes deerstalker hats, stuff tobacco in their Calabresi pipes, and pull out their pearl-handled magnifying glasses, have them proceed with caution and the following guidelines in mind.

1. How soon must an employer begin investigating after receiving allegations of employee misconduct?

Upon receiving information that an employee is engaged in misconduct, an employer should investigate promptly. Immediate and appropriate corrective action is required to avoid liability for harassment claims. ² If fraud is involved, an employer stops the flow of outgoing money by tackling the situation immediately.

Whatever the misconduct, the sooner it is addressed, the sooner the organization can once again focus on its mission. Resolution of misconduct halts the disruption and unproductive behavior caused by the rumor mill. In addition, it sends a message to all employees that the employer will not tolerate misconduct and will deal with it swiftly.

In the opening scenario, Helen should have investigated as soon as she received the report. No excuse will suffice. The law requires immediate action in response to a harassment complaint, not immediate action if it is convenient.

2. What should an employer do if an employee requests that a co-worker attend an investigatory interview?

If the employee is a member of a union that has a collective bargaining agreement with the employer, the employer must allow the co-worker to attend an investigatory interview.³ The National Labor Relations Act protects "concerted activities for the purpose of . . . mutual aid or protection."⁴ This protection, however, does not extend to non-union workers.⁵ In a non-union workplace, employees may request that a co-worker accompany them to an investigatory interview, and an employer may not retaliate against them for making the request.⁶ However, an employer need not allow the co-worker to be present.⁷

In the hypothetical, unless Marv and the co-worker are members of a union with whom the employer has a contract, Helen need not allow the co-worker to attend the investigatory interview. She should not, however, retaliate against Marv for asking if a co-worker can attend.

3. Must an employer allow an employee's attorney to accompany the employee to an investigatory interview?

Generally, an employer need not allow an employee's attorney to attend an investigatory interview. A custodial interrogation by law enforcement authorities triggers the right to an attorney.⁸ However,"[p]rivate conduct . . . may become so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections."⁹ Situations that could transform private conduct into state action include "a clear connection between the police and the private investigation[,] completion of the private act at the instigation of the police[,] close supervision of the private conduct by the police[,] and a private act undertaken on behalf of the police to further a police objective."¹⁰

Statutes also provide an exception to this rule for those employed by the federal government and some state governments.¹¹ Missouri has no such statutory provision.

In our scenario, if Helen's police officer-friend attends the interview in his uniform or on behalf of his employer, or identifies himself as a police officer, the right to an attorney is triggered. If he wears street clothes and is there merely for advice and moral support, perhaps not. However, investigatory interviews should be limited to one witness who is employed by the same company or is an agent of the employer and the interviewer. To invite others to an investigatory interview is to invite a defamation suit.

4. May an employer require employees to cooperate in the investigation?

An employer may require that an employee cooperate in an investigation. However, public employers have some restrictions on this right. The Fifth Amendment includes the right against self-incrimination. Based on this right, public employers must give employees a Garrity warning; that is, tell employees that statements made during an investigation cannot be used to incriminate them in a later criminal proceeding when the employee must choose between cooperation and termination.¹² In other words, a public employer cannot "both compel[] the employee to answer incriminating questions and . . . to waive immunity from the use of those answers."¹³

Another right that may be implicated in public employment investigations is the right of free speech under the First Amendment. In Blackwell v. City of St. Louis, the court ruled that a "decision to dismiss the employee may be coercive and, thus, violate the employee's First Amendment rights[,]" but merely asking questions "cannot reasonably be deemed coercion."¹⁴ In so ruling, the court noted that the interrogator was not the decision-maker in regard to disciplining the plaintiff.¹⁵ As a result of this decision, a public employer should separate the two functions, assigning a person to investigate who will not make disciplinary decisions.

In the above scenario, Helen may require that Marv cooperate. If their employer is a governmental unit, however, she must give Marv a Garrity warning and have someone else interview him if she will make disciplinary decisions about this matter.

5. May an employer insist that an employee remain in the room during an investigatory interview?

Employees must feel free to leave the room; otherwise, an employer risks liability for false imprisonment. In Redican v. K Mart Corp., K Mart suspected two employees of theft when one checked out her co-worker's purchases and failed to ring up two cartons of cigarettes.¹⁶ The court affirmed the judgment in favor of the plaintiffs on their false imprisonment claim, finding "ample evidence that [the plaintiffs] were detained."¹⁷ In so ruling, the court noted that one plaintiff was guarded by an employee while waiting to be questioned, K Mart told both plaintiffs that "they would be taken downtown if they did not confess," and "K Mart delivered them into the custody of the police."¹⁸ The court also noted that an employer can be found liable for false imprisonment even if it is paying the employees for their time in the investigatory interview.¹⁹

Returning to our hypothetical, Helen fears that Marv will try to leave the room before the investigatory interview is over based upon his apparent reluctance to cooperate. However, she cannot keep him from leaving the room or even give him the impression that he cannot leave.

6. May an employer search an employee's office for evidence of wrongdoing?

Employers may search employees' offices with some limitations. Employees may bring an invasion-of-privacy claim against an employer if it "unreasonabl[y] intru[des] upon [their] seclusion . . ." and discovers "a secret and private subject matter . . . through some method objectionable to the reasonable [person]."²⁰ For example, an employer would likely incur liability if it rifled through a thin file marked "Personal Medical Records" in an employee's briefcase when it was looking for a three-inch binder.

In addition to claims of invasion of privacy, public employers must consider constitutional issues as well. As determined in the case of O'Connor v. Ortega, public employers are also subject to the requirements of the Fourth Amendment.²¹ Therefore, government employers must balance a reasonable person's expectation of privacy "against the government's need for supervision, control, and the efficient operation of the workplace."²² To determine if the proper balance has been achieved, the courts will apply a reasonableness standard.²³ This standard requires that the search "is justified at its inception," meaning that the search is likely to turn up evidence of misconduct and that the employer "has an 'individualized suspicion' of misconduct" against the employee.²⁴ The Fourth Amendment does not approve of fishing expeditions. Public employers must have some indication of wrongdoing by the person whose office they are searching before they begin. For example, an employer could not search an employee's office for evidence of misconduct because they didn't like and wanted to get rid of the employee.

The reasonableness standard also requires that the search be "reasonably related in scope to the circumstances;" that is, it must be "'reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct.'"²⁵ In other words, an employer should not rummage around in an employee's purse if it is looking for a missing personal computer, nor should it search an employee's office for a missing box of paper clips.

In Marv's case, Helen wants to search his office for the pornographic magazines that Karen saw him reading. Marv's office, as a cubicle, has no door or lock to establish an expectation of privacy. If Marv's employer has informed employees that their offices may be searched and no other office practice serves to enhance an expectation of privacy, Helen could likely search Marv's office without liability. However, she should limit her search to employer-owned items; she cannot search his briefcase or other personal items.

7. May an employer monitor an employee's use of its computer, including e-mails, in response to allegations of misconduct?

In some cases, an employer may monitor an employee's use of its computer. The Electronic Communications Privacy Act ("ECPA") prohibits the intentional interception of "wire, oral, or electronic communications" in transmission.²⁶ However, employers whose facilities are used to provide electronic communication service may do so "while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the [provider's] rights or property."²⁷ This provision excludes "random monitoring except for mechanical or service quality control checks."²⁸ In other words, unless an employer "just happens" to intercept e-mails while servicing the facilities over which they are transmitted, interceptions of e-mails in transmission will not pass muster under the ECPA.

State law on this issue is unclear. No Missouri court has yet decided whether the definition of "wire communications" in § 542.400, RSMo, applies to e-mails.²⁹ If it does, e-mails may be intercepted "where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act."³⁰ As a result of the potential and likely application of "wire communications" to e-mails, an employer should obtain consent, either expressly through a signed annual statement or implicitly through notification to employees, that e-mails may be monitored with a signed annual acknowledgment and/or a daily banner reminder at sign-on.

Rather than intercept e-mails in transmission, it is more common for an employer to access e-mails while in storage. In these situations, the Stored Communications Act (SCA) applies. It prohibits access to stored e-mails, except for the person or entity providing a wire or electronic communications service.³¹ As a result, an employer who provides an e-mail system for its employees may monitor e-mails without violating the SCA.³² If e-mails are transmitted through a third-party service provider, an employer may access e-mails if it has the employees' consent.³³

In addition to the ECPA and the SCA, public employers are also subject to the requirements of the Fourth Amendment.³⁴ Consequently, the employer must balance the employee's legitimate expectations of privacy with the efficient operations of the workplace, applying the same analysis under O'Connor v. Ortega, outlined above under office searches.³⁵ An employer can shift the balance of that analysis, however, by reducing its employees' expectations of privacy. A court has found that notification to employees that their computer use will be monitored reduces the expectation of privacy.³⁶ This may be accomplished through a banner at sign-on requesting acknowledgment that e-mails may be accessed by the employer.³⁷ Other factors that may shift the balance are the degree of access to the employee's office, whether the computer is shared, and if the employer routinely searches e-mails.³⁸

Another computer issue that arises in employee investigations is the monitoring of Internet use. Such action may prompt claims of invasion of privacy. In these cases, courts have considered who owns the computer and whether the employer notified the employee that computer use may be monitored.³⁹

If Helen's employer provided the e-mail system and owns the computer, she could review his e-mails and Internet use if the employer had previously notified employees of such monitoring. If Helen's employer is a government, it would need a search policy disseminated to employees, as well as other measures reducing the expectation of privacy. In addition, it must also have a reasonable suspicion that the employee whose e-mail and Internet use is being reviewed has committed wrongdoing. In this case, Karen's complaint, with some corroboration, would suffice.

8. May an employer listen to employees' telephone conversations?

An employer may not listen to employees' telephone conversations unless one of two exceptions applies. The first is consent. This requires that one-party consent and monitoring is not "for the purpose of committing any criminal or tortious act."⁴⁰ Consent may be implied where an employer notifies employees that calls will be monitored and employees continue to use the phone.⁴¹ However, the scope of the consent is limited to the extent of the employer's monitoring policy.⁴² For example, an employer who notifies employees that it will monitor all sales calls may not listen in on personal calls.⁴³ If a personal call is intercepted in that situation, the employer may listen only long enough to determine the nature of the call.⁴⁴

The other exception that allows an employer to listen to employees' telephone conversations is the business use exception. The interception of wire communications is only prohibited when it is accomplished through the use of an "electronic, mechanical, or other device."⁴⁵ An "electronic, mechanical, or other device" is defined as:

any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than - (a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business. . . . ⁴⁶

Thus, to establish the business use exception, a defendant must prove two elements: (1) "the intercepting equipment must be furnished to the user by the phone company or connected to the phone line, and [(2)] it must be used in the ordinary course of business."⁴⁷ Use in the ordinary course of business requires that the employer have a legitimate business reason for monitoring telephone calls.⁴⁸ Industry practice may help establish a legitimate business reason.⁴⁹ However, "[t]he phrase 'in the ordinary course of business' cannot be expanded to mean anything that interests a company."⁵⁰ It excludes personal calls, except to the extent necessary to determine the nature of the call.⁵¹ This is true even if the subject of the personal call may affect the company⁵² or comments related to the employer's business are interspersed with personal conversation.⁵³ At the same time, the business use exception does not insulate from interception telephone conversa-tions discussing personal opinions about the workplace.⁵⁴

In the scenario above, Helen wants to wire-tap Karen's work phone to record Marv's obscene comments. She may do so if Karen, as a party to the conversation, consents or if calls are generally wire-tapped pursuant to a legitimate business reason and employees have been made aware that phone calls are monitored.

9. May an employer record investigatory interviews with employees?

An employer may record investigatory interviews with employees. The same ECPA defenses that applied to the recording of telephone conversations also apply to oral conversations not occurring over a telephone.⁵⁵ The consent exception, requiring the consent of one of the parties to the conversation, will always allow the recording of the investigatory interview in that the employer is one of the parties. However, one important caveat applies in this situation. An "oral communication" is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . ."⁵⁶ As a result, if the employer is planning to record the investigatory interview, it should inform the witness of its intention to avoid any "expectation that such communication is not subject to interception."

The consent exception virtually swallows the business use exception due to its application in all circumstances. However, the business use exception also carries a universal appeal in that the legitimate business reason for recording investigatory interviews is to memorialize what was said should questions arise about the adequacy or substance of the investigation.

Missouri law prohibits the interception of oral communications only "when [an electronic, mechanical or other device] transmits communications by radio or interferes with the transmission of such communication . . . ."⁵⁷ Because a tape recorder does neither, an employer may record an investigatory interview under Missouri law.

The employer must also consider the silencing effect of recording. Witnesses may not be as forthcoming when they know that their comments can be played back at any time, and denial is not an option if they misspeak.

Helen should explain the need for a recording to Marv, turn on the tape recorder, and then ask Marv if he understands that she is recording the interview, ensuring that his assent is audible. In this way, she has a record of Marv's knowledge that the interview was recorded.

10. May an employer require an employee to take a polygraph test?

In most cases, an employer may not require an employee to take a polygraph test. Employers "engaged in or affecting commerce or in the production of goods for commerce" may not require their employees to take a lie detector test.⁵⁸ The exception to this general rule is for ongoing investigations "involving economic loss or injury to the employer's business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage."⁵⁹ For this exception to apply, several conditions must be met:

1. "the employee had access to the property that is the subject of the investigation;"

2. "the employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation;" and

3. "the employer executes a statement, provided to the examinee before the test that-

1. describes the "incident or activity" under investigation "and the basis for testing the particular employees;"

2. identifies "the specific economic loss or injury to the [employer's] business;"

3. states "that the employee had access to the property that is the subject of the investigation;" and

4. states the reason why the employer reasonably suspects the particular employee being questioned.⁶⁰

In addition to the above requirements, someone who can legally bind the employer, other than the polygraph examiner, must sign the statement; and the employer must retain the statement for three years.⁶¹ Other requirements also apply regarding the manner in which the test is administered to protect the examinee's rights.⁶² If an employer takes action against an employee based upon the results of a polygraph test, it must have additional evidence supporting such an action.63

Unlike other aspects of investigations, governmental employers have more latitude in this area than non-governmental employers. Governmental employers are exempt from the provisions of the Employee Polygraph Protection Act.⁶⁴ As a result, they can require employees to take polygraph tests, even without an ongoing investigation. However, a government would be wise to follow the safeguards provided examinees under the act to ensure that no due process claims arise as a result of any shortcuts.

Helen may not require Marv to take a lie detector test because sexual harassment does not come under the type of misconduct covered by the exception allowing private employers to give a test. However, if Helen's employer is a government, she may do so.

11. May an employer tell other employees about the results of an investigation?

An employer may generally tell other employees about the results of an investigation in broad terms. An allegation of defamation is the most likely result of such a situation. To establish defamation, one must prove publication to a third person.⁶⁵ However, "communications between officers of the same corporation in the due and regular course of the corporate business, or between different offices of the same corporation, are not publications to third persons."⁶⁶ On the other hand, communications between supervisory and non-supervisory employees do constitute publication.⁶⁷ Even if publication is established, an employer has defenses it can assert.⁶⁸ "Truth . . . [is] an absolute defense."⁶⁹ If the defense of truth fails, statements may be subject to a qualified privilege as an intra-corporate communication.⁷⁰ This defense requires that the statements be "made in good faith upon any subject-matter in which the person making the communication has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matter which, without such privilege, would be actionable."⁷¹ Notice that, in order to escape liability for defamation, a statement must have been made in good faith. This requires an absence of malice, the "knowledge that [the statements] were false or with reckless disregard for whether they were true or false at a time when [the employer] had serious doubts as to whether they were true."⁷²

Even in the absence of malice, however, intra-corporate immunity could be defeated if "the statements made exceed the exigencies of the situation so as to constitute an abuse of the privilege."⁷³

In Rice v. Hodapp, an employer told employees about the results of a sexual harassment investigation, saying that it believed sexual harassment had occurred and that a particular co-worker had been transferred as a result of the investigation.⁷⁴ The co-worker later sued the employer for defamation on the basis of those statements. The Court in Rice found that sexual harassment affects the efficiency of a corporation and may also result in liability; hence the interest of the employer in making the statements.⁷⁵ The Court also noted that the plaintiff presented no evidence of malice, nor was the privilege abused in that the plaintiff's "coworkers certainly had an interest in knowing the company sexual harassment policy and its enforcement in their office."⁷⁶

As Rice demonstrates, Missouri courts are likely to give an employer some latitude in regard to employee misconduct investigations. However, an employer should restrict its comments to the most essential facts for which it has evidentiary support, stating only that allegations were made, an investigation took place, the results of the investigation described in general terms of "belief," and the action taken as a result.

In the opening scenario, Missouri law clearly allows Helen to provide the facts to employees. However, she should limit comments to merely stating that a complaint was made, it was investigated, whether the company believed harassment had occurred, and the action taken as a result of the investigation, if any.

12. After investigating an allegation of misconduct against an employee, must an employer report the findings of the investigation to the employee?

An employer must report investigatory findings to an employee if it takes adverse action.⁷⁷ Under recent amendments to the Fair Credit Reporting Act, an employer is exempt from many of the duties required of employers in the past for "communication[s] . . . made to an employer in connection with an investigation of - (i) suspected misconduct relating to employment; or (ii) compliance with Federal, State, or local laws and regulations, the rules of a self-regulatory organization, or any preexisting written policies of the employer."⁷⁸ A provision is triggered, however, if an employer takes adverse action against an employee. In these cases, employers are required to disclose to the employee "a summary containing the nature and substance of the communication upon which the adverse action is based."⁷⁹ This summary, however, need not reveal the "sources of information acquired solely for use in preparing" the investigatory report.⁸⁰

If Helen takes adverse action against Marv, she will need to provide him with a summary of the findings that led her to take the action. She does not need to, nor should she, provide names of sources, particularly if Marv will remain an employee. Identification of sources will only create ill will and disrupt the workplace.

Carefree Workplace Investigations

An employer already has problems when employee misconduct occurs. An investigation can resolve the problems or create more of them. The above answers will help the workplace detective get the most from an investigation without violating the law or trampling individual rights. By taking care in getting the information needed, workplace investigations can determine an appropriate end to allegations of misconduct, as well as eliminate liability for the conduct of the investigation itself. And that's a great way for any workplace problem to end.

Footnotes

¹ Kathleen Kedigh practices employment law, including the investigation of workplace misconduct, at The Kedigh Law Firm, L.L.C. She received her J.D. from the University of Missouri-Kansas City and is a certified fraud examiner.

² Meritor Savings Bank v. Vinson, 477 U.S. 57, 74 (1986) (Marshall, J., Brennan, J., Blackmun, J., and Stevens, J., concurring) (citing 29 C.F.R. §§ 1604.11(c), (d) (1985)).

³ NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).

⁴ 29 U.S.C. § 157 (1947).

⁵ IBM Corp., 341 N.L.R.B. 148 (2004).

⁶ Id.

⁷ Id.

⁸ Miranda v. Arizona, 384 U.S. 436, 479 (1966).

⁹ People v. Ray, 65 N.Y.2d 282, 286 (N.Y. 1985).

¹⁰ Id. (citations omitted).

¹¹ See, for example, 5 U.S.C. § 7114(a)(5) (1978).

¹² See Garrity v. New Jersey, 385 U.S. 493 (1967).

¹³ Hill v. Johnson, 160 F.3d 469, 472 (8th Cir. 1998).

¹⁴ 778 S.W.2d 711, 719 (Mo. App. E.D. 1989).

¹⁵ Id. at 719.

¹⁶ 734 S.W.2d 864 (Mo. App. W.D. 1987). This case is a "how-not-to" guide for workplace investigations.

¹⁷ Id. at 868.

¹⁸ Id.

¹⁹ Id. at 867.

²⁰ Corcoran v. Southwestern Bell Telephone Co., 572 S.W.2d 212, 214-15 (Mo. App. W.D. 1978).

²¹ O'Connor v. Ortega, 480 U.S. 709, 715 (1987).

²² Id. at 715-21.

²³ Id. at 725-26.

²⁴ Id. at 726.

²⁵ Id. (quoting New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)).

²⁶ 18 U.S.C. § 2511(1).

²⁷ 18 U.S.C. § 2511(2)(a)(i).

²⁸ Id.

²⁹ "Wire communications" are defined as "any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception including the use of such connection in a switching station furnished or operated by a person engaged as a common carrier in providing or operating such facilities for the transmission of local, state or interstate communications." Section 542.400(12), RSMo Supp. 2004.

³⁰ Section 542.402, RSMo Supp. 2004.

³¹ 18 U.S.C. § 2701.

³² Fraser v. Nationwide Mutual Insurance Co., 352 F.3d 107, 114-15 (3rd Cir. 2003).

³³ 18 U.S.C. § 2701(a).

³⁴ U.S. v. Angevine, 281 F.3d 1130, 1133-34 (10th Cir. 2002); Leventhal v. Knapek, 266 F.3d 64, 72-73 (2d Cir. 2001).

³⁵ Id. at 1134 citing O'Connor v. Ortega, 480 U.S. 709 (1987).

³⁶ United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000), cert. denied, 534 U.S. 930 (2001).

³⁷ Angevine, 281 F.3d at 1133.

³⁸ Leventhal, 266 F.3d at 73-74.

³⁹ Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002); TBG Ins. Servs. Corp. v. Superior Court, 117 Cal. Rptr.2d 155 (Cal. Ct. App. 2002).

⁴⁰ Sections 542.400, 542.402.2(3), RSMo Supp. 2004; see also 18 U.S.C. § 2511 (2002).

⁴¹ U.S. v. Rittweger, 258 F. Supp.2d 345, 354 (S.D. N.Y. 2003).

⁴² Watkins v. L.M. Berry & Co., 704 F.2d 577, 581-82 (11th Cir. 1983).

⁴³ Id. at 582.

⁴⁴ Id. at 581.

⁴⁵ 18 U.S.C. § 2510(5)(a); see also § 524.400(5)(a), RSMo Supp. 2004.

⁴⁶ 18 U.S.C. § 2510(5)(a)(i) (emphasis added); see also § 524.400(5)(a), RSMo Supp. 2004.

⁴⁷ Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir.1992).

48 Id. at 1158 (finding that the employer's suspicions that its clerk had been involved in a burglary of the business was a "legitimate business reason for listening in" on the clerk's telephone conversations); Sanders v. Robert Bosch Corp., 38 F.3d 736, 741 (4th Cir. 1994) (finding no business justification for the employer's "24-hour surreptitious recording of phone lines" based on fear of bomb threats where "the evidence of bomb threats received prior to the installation of the voice logger is scant . . . [and] no bomb threats were received throughout the period that recordings were made.")

⁴⁹ Arias v. Mutual Central Alarm Serv., Inc., 202 F.3d 553, 559 n4 (2d Cir. 2000) (finding that "the continual recording of all incoming and outgoing telephone calls at" a security alarm company was an industry practice and justified for "legitimate business reasons").

⁵⁰ Watkins v. L.M. Berry & Co., 704 F.2d 577, 582 (11th Cir. 1983).

⁵¹ Deal, 980 F.2d at 1158; Watkins, 704 F.2d at 582; Epps v. St. Mary's Hosp. of Athens, Inc., 802 F.2d 412, 416-17 (11th Cir. 1986).

⁵²Watkins, 704 F.2d at 582 (finding that employer's interest in an employee's interview with another company failed to justify its monitoring an employee's conversation with a friend).

⁵³ Deal, 980 F.2d at 1158 (finding that the employer's suspicions failed to justify listening to 22 hours of its clerks' telephone conversations, many of them personal).

⁵⁴ Epps, 802 F.2d at 416-17 (finding that an employer was justified in monitoring a call between co-employees during office hours "over a specialized extension which connected the principal office to a substation," criticizing supervisors in regard to their ability as supervisors).

⁵⁵ 18 U.S.C. §§ 2511(1)-2510(5).

⁵⁶18 U.S.C. § 2510(2).

⁵⁷ Section 542.402.1(2), RSMo 2000.

⁵⁸ 29 U.S.C. § 2002.

⁵⁹ 29 U.S.C. § 2006(d).

⁶⁰ Id.

⁶¹ 29 U.S.C. § 2007(c)(2)(b).

⁶² 29 U.S.C. § 2007(a).

⁶³ Id.

⁶⁴ 29 U.S.C. § 2006.

⁶⁵ Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo. banc 1996).

⁶⁶ Id.

⁶⁷ Id.

⁶⁸ Id.

⁶⁹ Id.

⁷⁰ Id.

⁷¹ Id. (quoting Carter v. Willert Home Prods., Inc., 714 S.W.2d 506, 513 (Mo. banc 1986)).

⁷² Id.

⁷³ Id. at 244-45 (quoting Hellesen v. Knaus Truck Lines, 370 S.W.2d 341, 345 (Mo. 1963)).

⁷⁴ Id.

⁷⁵ Id.

⁷⁶ Id.

⁷⁷ H.R. 2622, 108th Cong., 1st Sess. § 611 (2003) (enacted).

⁷⁸ Id.

⁷⁹ Id.

⁸⁰ Id.

JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 2 - March-April 2005