False Imprisonment in Workplace Investigations

False imprisonment is the wrongful restraining, confining or detaining a person without that person’s consent. It is a crime (i.e. Penal Code, § 236) and can be charged as a felony or misdemeanor. It is also a common law tort.
False imprisonment can arise in the employment context. This would typically occur during a workplace investigation when an overzealous employer investigates allegations of employee wrongdoing and tries to question the employee or coerce a confession. The act of false imprisonment happens when the employee is intentionally and illegally held against his or her will.
False imprisonment can also happen when one holds someone’s arm or arms and does not let go of the person. For instance, in Parrot v Bank of America (1950) 97 Cal.App.2d 14, an employer was held liable for detaining an employee at a supervisor’s desk for questioning about a suspected theft. The plaintiff recovered damages of $30,000 after showing that employer interrogated her for 3 hours and threatened criminal prosecution unless she confessed to misappropriating a deposit.

Elements to Prove False Imprisonment

To successfully sue for false imprisonment, one must show that:

  1. the employee was detained, confined, or restrained against his or her will by his or her employer or in the workplace;
  2. the employee believed he or she was being detained, meaning that he or she did not feel as though he or she were free to leave during the interrogation;
  3. the detention was  unreasonable – in time or in the manner confined – or in an unlawful manner.

Detained, Confined, Restrained
False imprisonment does require some impediment to the freedom of movement. The most common way is if an employer refuses to allow the employe to leave a room. The employer might do this by locking the employee in a room or by placing someone at the door to the room to prevent the employee from leaving.
However, the employee’s movement must be completely confined in order for the employer’s action to qualify as false imprisonment. Blocking the employee’s freedom to exit in one direction is not enough. If the employee can reasonably exit the room heading in a different direction, then false imprisonment has not occurred.
That being said, false imprisonment, however, does not require physical restraint. False imprisonment can also occur when the employer threatens to harm the employee or the employee’s property if he or she leaves. In addition, false imprisonment could also occur if an employer threatens to have the employee arrested if he or she leaves.
Unreasonable or Unlawful
Despite the above warning, it is important to note that in the confines of a theft investigation, an employer is allowed to reasonably detain an employee.
That detention becomes illegal, however, if the period of questioning is unreasonably long, or if you are confined using force or if threats are made to you.
In Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, the plaintiff alleged that she had been called into a windowless room and subjected to a coercive interview by her employer regarding an alleged theft of $4.95. During the interview, she was not allowed to leave the room and was subjected to profanity and threats of criminal prosecution. Her requests to call her mother were denied. Finally, she became hysterical and broke down in tears. Her “interrogators” then told her that they believed she did not steal the money, and they let her go. Although reasonable attempts to investigate employee theft, including interrogation, are a normal part of the employment relationship, any actions that go beyond the bounds of reasonable interrogation and detention, and constitute false imprisonment, are not entitled to protection.
Similarly, in Moffatt v Buffums’ Inc. (1937) 21 Cal.App.2d 371, an employer was found guilty of false imprisonment when the plaintiff-employee was detained in office for 5 hours to extract a confession that she had stolen money from employer.

Just Let Them Go

In conducting a workplace investigation, attempt to avoid strong-arm tactics. Attempt to be a neutral fact-finder. Coercive tactics call into question any resulting admission anyway. Furthermore, attempting to restrain or intimidate an employee can lead to a potential cross-claim of false imprisonment.
In a typical interview situation, the investigator should sit behind a desk or in a chair, facing the door that is the exit for the office. The employee being interviewed should sit with his or her back to the exit door and, if necessary, be reassured that they will not be kept from leaving. This arrangement also minimizes the risk to the investigator that the employee might become violent. If the employee feels that leaving is easy, he or she will probably do that rather than go out of their way to attack someone who is not in the exit path.
Some other pointers:

  • Ask the employee to come with you; do not order them. Although an employer may have a right under certain circumstances to order the employee to a nearby conference room for questioning, the safer approach is to simply ask the employee to come with you.
  • Bring a witness. A witness can help attest to the reasonableness of your actions.
  • Inform the employee he or she is free to go at any time.
  • If you decide to shut the conference room door, do not lock it.
  • Do not threaten to call the police if the employee does not remain for questioning. Although Texas courts have previously held that it is not false imprisonment for the employer to threaten an employee he or she will call the police if the employee does not remain for questioning, it is still advisable not to pursue this course of action, if at all possible.
  • Be mindful of the duration of your questioning.
  • Do not yell or otherwise try to intimidate the employee as this may influence their belief that they have been restrained.

If an employee indicates that he or she wants to leave the room or stop an interview, let him or her go. Your company is free to take disciplinary action against an employee who refuses to answer legitimate questions or participate in a workplace investigation. However, you can’t use physical means or threats to prevent the employee from leaving.