Don't Get Trapped By False Imprisonment Charges

(Published January 15, 2009)

 

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.  

 

Conducting a closed-door interview with an employee is not an unusual way to investigate possible employee misconduct.  But, in doing so, could you be making yourself vulnerable to claims of false imprisonment?  Perhaps, if the employee believes that he/she is not free to leave the room.  Find out what crosses the line from proper investigation to false imprisonment.

BEHIND CLOSED DOORS

When office supply store manager Ed Stilling discovered photocopies of pornography left in a copy machine one morning, he was understandably upset, since photocopying pornographic materials was expressly against company policy.  His investigation soon led him to sales clerk Derek Pontrain, who'd been the last employee to use that copier.
Stilling called Pontrain into the store's tiny cash office that afternoon.  "Have a seat, Derek," he said, softly closing the door behind them.  Pontrain hesitated, and then sat down reluctantly.

Stilling produced the photocopies in question and proceeded to ask Pontrain about them.  "I swear I've never seen them before in my life!" Pontrain protested.

"But, Derek, your employee access code was used to make these photocopies," Stilling pointed out.  "Can you explain that?"

After hemming and hawing for another 20 minutes, Pontrain finally confessed to helping a customer make the copies and keeping some for himself.  "I know I wasn't supposed to.  I'm sorry.  Please don't fire me," Pontrain pleaded.

"I'm going to need you to sign a statement attesting to the story you've told me, Derek," said Stilling, getting up and opening the office door.  "Please stay here — I'll be back in just a moment."

"Fine, whatever you want.  Just please don't let this become a legal matter or anything," begged Pontrain.

 

Stilling left the room, shutting the door behind him, but leaving it unlocked.  When he returned 10 minutes later, Pontrain was still there, waiting anxiously.  Stilling asked the employee to sign a written statement detailing his actions, and Pontrain complied.  Then, Stilling informed Pontrain that he was fired.  Pontrain just nodded, then left the store quietly.

A month later, Stilling was informed that Pontrain had sued the store for false imprisonment.  A court dismissed the case, since Pontrain hadn't been restrained by force or by threat of force and had never even made any indication that he'd wanted to leave the room or the premises.  Pontrain's argument that he had stayed in the cash office out of fear of the implicit threat of losing his job and of criminal prosecution didn't constitute the necessary fear of restraint needed to support a false imprisonment claim.

 

EASY WAY OUT

Take heed of the right moves made by Stilling, and avoid the wrong moves that could form the basis of a false imprisonment claim.

Right move: Stilling never physically restrained Pontrain from leaving the room or the store.
Tip: Shut the door for privacy, but do not lock it or place yourself or someone else in front of the door to block the employee's exit.

Right move: Stilling never verbally restrained Pontrain from leaving.  He asked the employee to stay, but did not tell him he couldn't leave.

Tip: False imprisonment can occur even without physical restraint.  Threatening to have the employee arrested, or threatening harm to the person or the person's property, may form the basis of a valid false imprisonment claim.  You may certainly call the police if you have a reasonable suspicion that an employee has broken a law, but don't threaten to have an employee arrested just for leaving the investigation. 

On the other hand, the threat of termination generally does not constitute false imprisonment; employment at-will takes precedence.  It is generally not considered coercive to fire an employee for refusing to cooperate in an investigation.

Right move: Stilling acted in good faith in investigating an incident of misconduct. 

Tip: Don't confine an employee's movement as a form of punishment or to try to coerce a confession.

Right move: Stilling acted reasonably.  The investigation lasted less than 90 minutes.

Tip: Although there is no bright-line rule for determining when a closed-door investigation becomes a case of false imprisonment, the shorter the confinement, the better it will look for your company. 

Reasonableness turns on the facts of the situation.  An investigation will naturally last longer if an employee is not forthcoming with his/her responses, but if the employee is cooperative, let them go as soon as they've answered all of your questions.  Don't retain them longer to try to scare them into providing additional information.