long story needing advice

[Green_Hornet]

Maybe, maybe not.

Disparate treatment can be one defense in a civil case, I suppose, but it does not mean that he is innocent and he CAN still be criminally prosecuted for the theft. In a criminal case, the state does not care if other employees have been reported or not. The criminal aspect cannot be discounted in any consideration made by the employee and his attorney ... assuming he IS fired, and this has not happened yet.

If he is not terminated, then he pretty much has no case against his employer that I can see. It might take a lot more than a grueling interview for a jury to think that he is being picked on to the point he should be rewarded with great sums of cash. But, I suppose it would depend on whose rendition of the interview the jury might believe.

- Carl

Criminal what is this none sense? The criminal was the guy that showed up packing heat, telling the victim to empty the till. You think the employer is going to file criminal charges against the victim? There is no maybe about it-the tapes are discoverable. I think a reasonable jury watching all of them and seeing only one employee getting the ax, will have to ask why?

 

[CdwJava]

Criminal what is this none sense?

It is safe to assume that the employer has some reason to believe that the OP has taken things without their permission (even if the organization is composed of nebulous bad guys wearing black hats and with motives that include world domination). Can we agree that they are probably not just making that up out of whole cloth for reasons of their own?

If they have such an indication, and if it comes from something approaching the concept of evidence - such as eyewitness testimony or even videotape - then they have a good case to make to the police and to the DA for theft. Whether they will MAKE such a report is impossible to say. However, if they have such proof, and the OP decides to play hardball, it IS a possibility that he could be prosecuted and it is certainly something the OP should consider.

The criminal was the guy that showed up packing heat, telling the victim to empty the till.

Actually, the store was the victim of the robbery, too.

You think the employer is going to file criminal charges against the victim?

No, but they might request charges against the suspect of a theft.

There is no maybe about it-the tapes are discoverable.

Sure they are. And i they prove the employee was committing theft ... ouch!

I think a reasonable jury watching all of them and seeing only one employee getting the ax, will have to ask why?

In a civil case, sure. But, in a criminal case, that will not be relevant. The employee committed theft.

Now, the defense can try to bring up a retaliation defense and might try to argue that other employees had committed theft and were not fired or prosecuted, but that is no guarantee of an acquittal as many - including the DA - will still argue that the OP committed the crime of theft and that it does not matter why the employer reported it.

I suspect the employer's account of the scenario would go something like ... "During the course of our investigation in an effort to identify the robber for the police, a review of the video surveillance found that the employee was stealing ... further review of additional tapes, a review of inventory reports and receipts, and statements from co-workers indicated an ongoing pattern of theft which is also supported by the video evidence."

Been there, done that, seen it happen.

The only real hope the OP would have in such a case would be that other employees have not been caught doing the same thing. However, the employer is certainly under no obligation to review every tape and every employee, and they cannot be responsible to discipline or investigate every employee for alleged offenses that had not come to their attention. So, even if the defense brought up co-workers that were not terminated, the employer could simply argue that they had not reviewed those tapes as they had no previous reason to do so.

The OP's strongest venue would be in civil court, not in a criminal court where the issues are pretty cut and dry ... did he, or did he not take property that did not belong to him without the permission of the rightful owner of the property?

Whether there exists enough evidence to prosecute, who can say? All I am saying is that this is something the OP must take into account when deciding whether or not to pursue civil action against the employer in the event he is terminated for the thefts.

- Carl

 

[Green_Hornet]

It is safe to assume that the employer has some reason to believe that the OP has taken things without their permission . Can we agree that they are probably not just making that up out of whole cloth for reasons of their own?

No! We can not agree on such a thing, the supposed tapes of the employee stealing were never played to the employee. Some lying goon just said there were tapes, "now can you recall any thing you may have taken without paying, we have tapes"? That was the question posed by the Pinkerton, to the employee. It is not a conspiracy theory that employers will try terminating employees before they can file any kind of a claim against the company. That is not a conspiracy there are cases over such things in courts every day.

If they have such an indication, and if it comes from something approaching the concept of evidence - such as eyewitness testimony or even videotape - then they have a good case to make to the police and to the DA for theft. Whether they will MAKE such a report is impossible to say. However, if they have such proof, and the OP decides to play hardball, it IS a possibility that he could be prosecuted and it is certainly something the OP should consider.

I doubt they have any such evidence if they did, they would have filed with the real police well before the robbery. I don't know what color the sky is in your world, but I seriously doubt a prosecutor would take a case of alleged retail theft of a possible few cans of Coke over a five year period that happened to come up after the victim was robed at gun point.

Actually, the store was the victim of the robbery, too.

No. The store is a corporation, it does not breath or live it is kept alive by employees "like the one robed at gun point", and its paying customers. It is also a public company beholden to its share holders, public company's do not like adverse media attention that would come to light on the news if such a scenario as you are outlining were followed through with. I seriously doubt the share holders took a hit on their portfolio equal to the cashier robed at gun point.

No, but they might request charges against the suspect of a theft.

Even if they have tapes of her taking the soda-not on your life for reasons I already explained.

Now, the defense can try to bring up a retaliation defense and might try to argue that other employees had committed theft and were not fired or prosecuted, but that is no guarantee of an acquittal as many - including the DA - will still argue that the OP committed the crime of theft and that it does not matter why the employer reported it.

No D.A in his right mind is going to prosecute this lame case. In Criminal proceedings she has even more rights than a civil case, she does not even have to take the stand under the fifth amendment. The rules of evidence are much more stringent as well. No where in the post did the poster claim to "watch" a tape of her walking out the store with unpaid merchandise. I doubt the company goons Mirandized her before taking her statement, so that gets bounced on a motion and is never heard. So what's left? A crime victim being persecuted by a company in order to escape a W.C claim, or for handing over the money to the armed robber. For your scenario to work at all there has to be way more evidence than the poster laid out.

Been there, done that, seen it happen.

O.K. So you have actually been called to a store by a security outfit. In regards to an armed robbery and: 1. Arrested the victim employee for stealing two cokes over a five year period with nothing but a coerced statement from a couple of rent a cops notorious for improper police procedure. 2. Booked her 3. Arraigned her 4.Then testified against her at trial. 5. The victim lost at trial? Well if that is true something is very very wrong. Certainly would not be something to be proud of in my view.

However, the employer is certainly under no obligation to review every tape and every employee, and they cannot be responsible to discipline or investigate every employee for alleged offenses that had not come to their attention. So, even if the defense brought up co-workers that were not terminated, the employer could simply argue that they had not reviewed those tapes as they had no previous reason to do so.

Well then it's not a zero tolerance which is why I said zero tolerance policy on employees is rare for any offense. If the employer sees the employee drinking a soda in a tape "that more than likely does not exist" , he better review all the tapes to claim a zero tolerance policy. Otherwise it's a sham.

Whether enough evidence to prosecute exists, who can say? All I am saying is that this is something the OP must take into account when deciding whether or not to pursue civil action against the employer in the event he is terminated for the thefts.

Oh trust me her lawyer will weigh all that if he is competent, if a Prima facia wrongful termination case exists, if the evidence of theft is little more than a few sodas over a five year period where the employee is not sure was paid for or not. The employee has a strong case, and the employer hardly meets the burden for a city attorney to prosecute a criminal case.

 

[CdwJava]

No! We can not agree on such a thing, the supposed tapes of the employee stealing were never played to the employee.

(Sigh ...)

Okay, assuming this is not the evil empire with CEO Adolf running Vader-Mart, *I* will assume (as will most people) that they are not just making it up out of the ether for grins and giggles. If they are making it up out of primordial vapors, then no criminal case would ever be forthcoming.

But, since the OP himself admits that he had taken some things and may not have paid for him (in my experience that means they did NOT pay for them), then we should assume that the possibility of a criminal complaint exists. Whether any evidence exists to support it or not, we cannot know.

I doubt they have any such evidence if they did, they would have filed with the real police well before the robbery.

Not always true. I have been the investigating officer on nearly IDENTICAL situations where it was the investigation after the more serious offense that prompted the more immediate filing of the lesser offense now rather than later. It could be that it had been on the back burner, but that suddenly his name came up again. Or, as is likely, their review of the tapes to find evidence in the robbery revealed some impropriety by the employee.

I don't know what color the sky is in your world, but I seriously doubt a prosecutor would take a case of alleged retail theft of a possible few cans of Coke over a five year period that happened to come up after the victim was robed at gun point.

I seriously doubt that is what was being discussed. A few cans of coke over a five year period ... I can't imagine getting so lucky as to come across tape or evidence of that! My experience tells me that if they report such a thing to the police, it is far more commonplace than one can every few months.

No. The store is a corporation, it does not breath or live it is kept alive by employees "like the one robed at gun point", and its paying customers.

You may not like it, but in a robbery there are two victims in a commercial robbery - the one that is subject to the assault (the gun being pointed at them) and the other being the corporate entity that lost the money (the business). Like it or not, but the business IS a victim in a robbery. Either that, or the FBI has been feeding bad info to all us lowly coppers for a few decades.

It is also a public company beholden to its share holders, public company's do not like adverse media attention that would come to light on the news if such a scenario as you are outlining were followed through with.

The fact that a business reporting a thief after he was robbed at gunpoint might be embarrassing does not preclude it from happening.

Whether it is likely or not, I cannot say. Maybe it is, maybe it isn't. Since none of us know what proof the employer has - apparently, not even the employee ... though I suspect he knows to what level he has pilfered the company over the years, if he has done so at all. To IGNORE the possibility of prosecution would be darn foolish of the OP.

I seriously doubt the share holders took a hit on their portfolio equal to the cashier robed at gun point.

Financially, the clerk did not suffer a loss, either ... unless the robber also took the clerk's wallet.

No D.A in his right mind is going to prosecute this lame case.

How do you know it is "lame"? I don't. I don't know that it is valid, or if it "lame". Neither do you. For all we know, the OP has stolen thousands of dollars in merchandise over the years ... at what level of pilferage do you think prosecution is acceptable?

I doubt the company goons Mirandized her before taking her statement, so that gets bounced on a motion and is never heard.

Really? So, the LP investigators were acting as agents of the police? I don't know what state YOU are in, but in most of them LP personnel are not subject to Miranda laws, and in my state the statement would stand an excellent chance of admission unless it were shown to be coerced (such that an innocent person would confess) and not simply ill-advised.

For your scenario to work at all there has to be way more evidence than the poster laid out.

Of course. And I am making the assumption that they have SOME reason to believe that the OP was up to something. I see absolutely no motivation for them to just make crap up out of the blue simply to vex the OP for no reason. Sorry, such a thing makes no sense.

O.K. So you have actually been called to a store by a security outfit. In regards to an armed robbery and: 1. Arrested the victim employee for stealing two cokes over a five year period with nothing but a coerced statement from a couple of rent a cops notorious for improper police procedure. 2. Booked her 3. Arraigned her 4.Then testified against her at trial. 5. The victim lost at trial?

That is NOT what happened here or in any case I am familiar with, so the hypothetical is asinine.

Well then it's not a zero tolerance which is why I said zero tolerance policy on employees is rare for any offense. If the employer sees the employee drinking a soda in a tape "that more than likely does not exist" , he better review all the tapes to claim a zero tolerance policy. Otherwise it's a sham.

Why? Should he hire a tape reviewer for every shift every day? Or just review tapes when some impropriety comes to his attention? Zero tolerance means that they hold no tolerance to any and all such actions that comes to their attention.

Using that theory, we shouldn't have "zero tolerance" drinking and driving laws for underage drivers because some kids don't get caught. Simiarly, an employer cannot be held liable for activity he or she cannot be reasonably aware of. That sort of a standard would be ridiculous and an impossibly high burden. If that were the standard, no one could possibly hold employees accountable because someone somewhere would always be able to point to someone that managed to get away with it.

"See! Bob did it, so I shouldn't be held accountable!"

Disparate and inequitable treatment is a good argument if someone was caught and not punished under the same or nearly the same fact set. But to say that a person cannot be punished because the employer did not catch someone else who did it is silly and I do not believe that such a legal standard exists. It may have been applied in the odd case here or there, but I do not believe that is the standard.

In the end, we are all hypothesizing what evidence may or may not exist. The OP does not know and may NEVER know. Odds are this will never go to court for anything. But, the OP woul dbe a fool not to at least take into consideration the possibility that the state might prosecute him for theft if there is evidence that exists to show that he did. Only HE knows whether or not he committed any theft and at what level.

I never once said that there was enough to prosecute, only that it might be an option. I even leave open the possibility that the employee may have been railroaded because the LP folks were trying to get an admission to something they suspect but cannot prove. On the other hand, you seem to believe that the employer is Satan, the LP folks are the Gestapo, and that the OP is some kind of innocent victim in all this (and that his theft - at whatever level it might have been - is acceptable and understandable. Why the lack of an open mind on the issue? Why the vitriol against businesses and employers?

- Carl

 

[Green_Hornet]

Carl stop busting my balls here with: the sigh, the Nazi CEO, and the conspiracy nonsense. If you want to believe that companies never take adverse action against an employee, who has a potential claim against them feel free. I am not going to waste a bunch of ink laying down hundreds of cases that bear out that they do. It is not a conspiracy its like minds thinking alike and corporations protecting their interests in a sometimes overzealous manner.

It's like believing the insurance companies always dutifully pay off legitimate claims, most of the times they do but not always, employers are the same way.
(Woo calming down now)

But, since the OP himself admits that he had taken some things and may not have paid for him (in my experience that means they did NOT pay for them), then we should assume that the possibility of a criminal complaint exists. Whether any evidence exists to support it or not, we cannot know.

Well I got some bad news for you every case is unique that is way to blanket a statement to make. This case has about as much chance of going to a criminal charge as a snow ball in Haiti. If the rent a cops don't have to Mirandize her as soon as the complaint goes to the police, they most definitely do if they want to proceed with an investigation. Unless the rent a cops file the case directly with the D.A's office (which by the way they have to run by corporate counsel who more than likely would toss it) and with the facts the poster presented the D.A would in my view toss the thing as frivolous and with little merit. Hopefully the poster will come back and fill in the blanks.

Now zero tolerance on workplace drug use is easy to enforce there are guidelines for U.A's pre-employment hiring U.A's and background checks, etc, etc. If the policy was only enforced when there was potential liability to the company than yes that would be a sham policy as well.

Your hung up on criminal law here this is not a criminal case zero tolerance policy are not practical in all areas of the workplace as they would be in law enforcement for arresting criminals, for exactly the reason you said.

Why? Should he hire a tape reviewer for every shift every day? Or just review tapes when some impropriety comes to his attention? Zero tolerance means that they hold no tolerance to any and all such actions that comes to their attention.

Exactly as soon as plaintiffs attorney reviews the tapes and find employees taking more than a soda the zero tolerance argument heads south. Which is why companies have rule books vs zero tolerance policies so they can impose discipline when it comes to light company hand books and rules very seldom use the words zero tolerance not just for pilferage but for all their rules with a very narrow exceptions like drugs and alcohol.

Disparate and inequitable treatment is a good argument if someone was caught and not punished under the same or nearly the same fact set. But to say that a person cannot be punished because the employer did not catch someone else who did it is silly and I do not believe that such a legal standard exists. It may have been applied in the odd case here or there, but I do not believe that is the standard.

Oh but it is you see, it is known as McDonald Douglas analytical frame work it is typically applied in civil right cases however employment attorneys tend to use it for a wide array of employment law litigation.

Financially, the clerk did not suffer a loss, either ... unless the robber also took the clerk's wallet.

To say the company suffered as much as the cashier with a gun stuck in her face is a joke, which requires no response. That violates common sense, I guarantee if your wife gets held at gun point as a cashier your not going to think that or even want to here it. The company has insurance they will be reimbursed.

That is NOT what happened here or in any case I am familiar with, so the hypothetical is asinine.

It is exactly what happened here according to the poster and you are right to proceed with it would be asinine no argument there.

Really? So, the LP investigators were acting as agents of the police? I don't know what state YOU are in, but in most of them LP personnel are not subject to Miranda laws, and in my state the statement would stand an excellent chance of admission unless it were shown to be coerced (such that an innocent person would confess) and not simply ill-advised.

Yea right. Heck why have police Dept's. at all we can all just go locking people down get their statement bring them to the city jail and file the paper work with the city attorney ourselves say "hey I'm an L.P investigator got my badge from the bottom of box of Fruit Loops". Then the D.A can say to the judge, "Miranda does not apply because the police did not file the charge an L.P investigator did", calling Toucan Sam the stand to back it up". I don't think so.

 

[CdwJava]

Carl stop busting my balls here with: the sigh, the Nazi ceo, and the conspiracy nonsense.

Sure ... as soon as you stop believing that behind every rock is a greedy, evil corporate thug out to oppress the little man.

If you want to believe that companies never take adverse action against an employee, who has a potential claim against them feel free.

I never said that was NOT the case ... I just don't see it as likely, especially given the number of people that would have to ba part of that particularly railroad job in this scenario.

Well I got some bad news for you every case is unique that is way to blanket a statement to make. This case has about as much chance of going to a criminal charge as a snow ball in Hati.

Maybe so ... but then, you have no idea what the company has in the way of evidence, do you? Neither do I. I doubt any aspect of it will see the inside of a courtroom, but all things are possible even if they are not all probable.

If the rent a cops don't have to Mirandize her as soon as the complaint goes to the police, they most definitely do if they want to proceed with an investigation.

First, they are not "rent a cops" ... they are loss proevention personnel (security guards, investigators, whatever ... they have a job to do and one would hope they do it properly. if they're idiots, they are idiots. But, again, we do not know one way or the other.

Second, my state does not hold LP or security personnel or any private individual to Miranda, and neither do most states. They could investigate all week and all day without Miranda warnings if they wanted to. I understand that some few states do require these warnings. Whether the OP's un-named state does, and whether he WAS Mirandized, we don't know.

Now zero tolerance on workplace drug use is easy to enforce there are guidelines for U.A's pre-employment hiring U.A's and background checks, etc, etc. If the policy was only enforced when there was potential liability to the company than yes that would be a sham policy as well.

We're not talking about a UA where the employer has some control over the application, we're talking about criminal activity in the work place that has to be uncovered. It's hard enough to catch a single action of impropriety when reviewing a tape with a crime in a known time frame, to do so in the hopes of catching a random few seconds in a 168 hour work week is a tad nigh impossible unless you invest a great many hours in the review of such tapes.

Exactly as soon as plaintiffs attorney reviews the tapes and find employees taking more than a soda the zero tolerance argument heads south.

Only if the employer should have reasonably known of those thefts. Though that would be a defense in a civil case, not a criminal one. And, of course, I am assuming something more than a random coke here and there. In the cases I have seen with similar allegations, we're talking some far more extensive and regular thefts and even allowing friends to get away with stuff. I doubt they'd waste all that time and money investigating the theft of a coke can each week.

To say the company suffered as much as the cashier with a gun stuck in her face is a joke, which requires no response.

We were not talking suffering, we were talking "victim". Legally speaking, the business IS a "victim" of the robbery. If a business cannot be a victim, then shoplifting and commercial burglary could not be a crime, could it?

While the business did not suffer the same emotional response, when you are talking about "victim", the business IS a victim in the legal sense of the word.

That violates common sense, I guarantee if your wife gets held at gun point as a cashier your not going to think that or even want to here it. The company has insurance they will be reimbursed.

Of course. And if I get hit by a drunk driver, I also have insurance and will be reimbursed. I am still a victim even if insurance makes me financially whole again.

Then the D.A can say to the judge, "Miranda does not apply because the police did not file the charge an L.P investigator did", calling Toucan Sam the stand to back it up". I don't think so.

The LP investigator did not file the charge, the police would forward it to the DA and then the DA would pursue it at court. Miranda does not generally apply for non-government actors. I am sorry if you do not like it.

But, coerced statements can still be omitted. The difference is that government actors need to read the magic words, private actors NOT acting at the request of the government generally must not provide inducements such that an innocent man might be coerced into admitting guilt when he or she might not be. Unless the OP lives in one of the few states where Miranda might be required by private actors in this situation, his statements could potentially be brought in against him ... particularly if he signed any confessions. Then, of course, the defense could argue credibility, etc.

Like I said, I have no idea where this matter will go. We can all close our eyes and envision circumstances where this could go in any direction. It could be a case of evil corporate CYA gone amok, or it could be a case of dumb luck causing the clerk's ongoing pilfering to become uncovered. Or most anything in between. Who knows?

There could be bad acts by the employer, there could be criminal acts by the employee, there could be nothing done by no one. Bottom line is, we do not know and likely never will.

- Carl

 

[Green_Hornet]

Sure ... as soon as you stop believing that behind every rock is a greedy, evil corporate thug out to oppress the little man.

Your starting to sound like a nut when and where did I ever make a blanket statement like that. Your just besmirching a sound legal argument by stereotyping, because you don't like the idea of the poster seeking redress in civil court. The drunk driver analogy raises an interesting question how would you like it if the insurance company did not pay off,and had to be sued would you be believing "that behind every rock is a greedy, evil corporate thug out to oppress the little man"? Or would you be trying to get what is yours? You sound like you may have a beef with employees excerpting their rights at work and civil litigation in general with that hostile attitude. Now if I made a statement such as " You seem to think anyone accused of anything is guilty". Well I would be doing you wrong, so why don't you go back and remove that bogus line your passing on the Hornet (as soon as you stop believing that behind every rock is a greedy, evil corporate thug out to oppress the little man). Otherwise you are gonna loose some credibility and look foolish.

We're not talking about a UA where the employer has some control over the application, we're talking about criminal activity in the work place that has to be uncovered. It's hard enough to catch a single action of impropriety when reviewing a tape with a crime in a known time frame, to do so in the hopes of catching a random few seconds in a 168 hour work week is a tad nigh impossible unless you invest a great many hours in the review of such tapes.

Thats what I have been trying to get through, zero tolerance only works on things like sick days, tardiness, and substance abuse, it is rare for an employer to make a zero tolerance on every single thing that can come up in the work place. Zero tolerance implies the company will employ maximum discipline, company's seldom want to box themselves into that type of corner for exactly that reason.

 

[CdwJava]

As I have said previously, we do not know what is really going on. This could be part of a very legitimate concern by the employer, or it could be part of some nefarious plot to somehow avoid a worker's comp claim ... we do not know. But most any possibility exists, including the possibility that the OP is guilty of theft, and the possibility that the employer actually has evidence. ALL of this (his actions, the employer's, how he can prove his claims, how the employer can prove their claims) must be considered by the OP when making ANY decision how to proceed.

Beyond that, I think it's at 'nuff said.

- Carl

 

[Green_Hornet]

A Cool down period works for me. I'm going to be cracking the books on this L.P Miranda thing. A cursory search shows that you are correct Carl in most cases. However in the employment context (which this is) further research is required since your post raises some other legal issues for the poster in civil litigation. Hopefully the poster will reply and fill in more details.

This may take a day or two but I will be back.

 

[CdwJava]

Thank you. Sorry for the heated discourse, by the way.

The civil issue is naturally going to be different than a criminal matter, and even in a criminal complaint the confession could not have been coerced and can still be challenged as unreliable under the right set of circumstances. I have also heard of some states that do hold civilians and security personnel to some sort of Miranda standard. CA is not one of those states, however.

- Carl

 

[Green_Hornet]

Forget about it Carl no need to apologize like the Law professor constantly reminds us "we are all friends here whether things get heated or not".

 

[Michael Wechsler]

To be honest, ladies and gents... I don't think we are hearing nearly the entire story here. So the store gets robbed at gunpoint and the loss prevention officers are accusing the poster/employee of being involved in an inside job... so the employee admits to taking a few bottles of pop and candy? I am missing a huge piece here. On one hand the OP says that there was a robbery at gunpoint - but are we saying the LP officers were there just to question the OP on whether the OP took some items and never paid for them?

Then we get into how the OP feels the company is responsible. I know many a member here who would joke about whether this took place in California where employees feel that the employer should be rolling out the carpet for them. While I understand the security concerns, danger zone, etc., I'm still at a total loss as to what the armed robbery has to do with LP being concerned about candy bars and soda pop or whatever was taken.

IMHO, the statement is likely an admission of violating company policy whether or not it is or isn't "theft." Without more facts, all of this sounds like a lot of verbage to help rationalize something that got a few loss prevention officers very angry. I'm guessing that their anger has nothing to do with $17 of food.

So what's my take? This is all speculation. I think the OP has a lot of explaining to do and why the LP officers would seem to accuse the OP of possibly being in on the job or would angrily pursue the OP for a few dollars of food right after an armed robbery. This just doesn't pass the "full story" test for me.

 

[CdwJava]

Pretty much my point all along. I can't imagine this is over a few sodas, but instead over an ongoing act of larceny, or, a belief (whether right or wrong) that the employee was in cahoots with the robber. Maybe it is retaliation to preempt a worker's comp claim or some sort of suit, but that seems a stretch - to make stuff up - in order to prevent a claim against one's insurance.

There is a lot missing.

- Carl

 

[Green_Hornet]

Maybe it is retaliation to preempt a worker's comp claim or some sort of suit, but that seems a stretch - to make stuff up - in order to prevent a claim against one's insurance.

Its not a stretch at all Congress took a though review of problems for workers in various industry's and took a close look at OSHA and other agency's, to see if their measuring up. Here is the 44 page finding so no this is not a conspiracy theory:
http://edlabor.house.gov/publications/20080619WorkplaceInjuriesReport.pdf
This sort of thing wont make it to the Glenn Beck show or even liberal publications, however those that work with it everyday are aware of it.

 

[Green_Hornet]

Well my research into this private security L.P questioning employees is over, as Carl pointed out, in most instances private security personnel are not considered law officers or peace officers and are, therefore, not bound by the same rules and regulations that apply to public police. So employees beware of this and know your rights this gives rise to some shady dealings.

My search on the Internet had some good results for the state of Ohio and California had a good exception on questioning employees by security. Statutory requirements for training of private security personnel are very limited. Less than half the states require any training for private security personnel. Some training may be required of those who carry deadly weapons.

Given that it's no surprise the courts are seeing more and more cases involving injuries to citizens by private security personnel. Most of these cases arise from actions such as assault, battery, false arrest, and false imprisonment. However, the facts of the cases clearly reveal a lack of proper training of the private security officer involved. In the cases where negligent training has been an issue the courts make it clear that a lack of training is a basis of support for a cause of action for injury by private security personnel.

In my experience with employee theft of property, (before the company legal dept authorizes a criminal complaint) the theft has to be ongoing and rate high dollar amount. The only case I dealt with were the police were summoned and charges leveled against an employee revolved around an employee who had stolen gasoline with the company credit card filling up his tank for a year straight in his suburban.

Given the circumstance the union got him a pretty good deal he got to sign a letter of resignation instead of firing him after an investigation he was entitled to but would have lost; he paid back the company with some interest. The company dropped the three felonies to one misdemeanor, and the city attorney gave him a suspended sentence on that. All other employee theft case are handled in the usual contract manner.

The posters plight is different and she is dealing with L.P types in a retail environment; however she is an employee, and not a shop lifter there is considerable difference in handling. Employee theft in terms of a couple cokes is an internal matter, and there is absolutely no way the city attorney would get involved in such a thing. The reason is simple the employer can easily get the money from the employee, fire the employee or both.

In the post the investigation itself raises some civil liability issues on the employer. More and more frequently, untrained or minimally trained, and basically unqualified security officers are taking actions against employees which are excessive and unreasonable. Without the Constitutional protections which would be available if the act were committed by a public police officer, the only recourse for a employees (and the public) against reckless and wanton conduct on the part of private security personnel is a civil action, seeking compensation for the inconvenience caused or injuries received.

California has taken a bold approach to this problem The California Business and Professions Code Section 7521-7539 states: that any person "investigating, obtaining, and reporting to any employer, its agent, supervisor, or manager, information concerning the employer's employees involving questions of integrity, honesty, breach of rules, or other standards of performance of job duties" must be a licensed private investigator.

To qualify for a license as a private investigator, an individual must have between 4,000 and 6,000 hours (depending on formal education) of professional experience "employed as a sworn law enforcement officer, military police officer, insurance adjuster, employee of a licensed PI or repossessor, or arson investigator for a public fire suppression agency.". Performing internal EEO investigations (Typically handled by H.R Dept's.) would not necessarily qualify as professional experience towards a PI license if performed directly for an employer. Remember the agent, supervisor, or manager can investigate. For example the store manger sees an employee taking something or the problem is reported to them can investigate without an investigator and envoke discipline under company policy.

Acting as an unlicensed investigator, and even employing one, can be a misdemeanor. Evidence gathered illegally will not be admissible in court, defeating the whole purpose of the investigation.

Attorneys, who are licensed under a different section of the Business and Professions Code, are allowed to conduct investigations "in performing his or her duties as an attorney at law." Employees who conduct investigations solely within their own organization are also exempt from the PI license requirement.

Because employment law issues are different from the insurance fraud and criminal investigations that PI's traditionally perform, employers H.R to conduct an investigation into employee relations matters such as workplace harassment or discrimination issues. Subject matter expertise is important because it helps frame the issues that an investigator will probe. A fact-finder, such as a jury, may scrutinize not only whether the investigator has relevant experience, but also the methods an investigator uses to uncover information. A few well-publicized incidents of PI's overreaching may tarnish the reputations of honest and scrupulous investigators. Also, in California, an individual who hires an investigator may also end up being liable for torts and negligent acts committed by the investigator.

Tort law in employment law is rare but the courts are sensitive to the issue of unqualified security officers are taking actions against employees. Therefore with Fifth Amendment and other constitutional safegaurds removed tort law with common law remedies are available to fill the gap.

I will touch on a few of these that may or may not be applicable to the poster. Although an employer has the right to question an employee about matters pertaining to employment, an employer does not have the right to beat an employee until the employee confesses to a crime she did not commit. The legitimacy of the employer's inquiry will depend on the reasons for the inquiry, the methods used, and the sensitivity of the topic which is being investigated. Intrusive questioning or unreasonable tactics may result in liability for a variety of torts, including false imprisonment, assault, intentional infliction of emotional distress, and intrusion upon seclusion.

For example in the posters case if she was promised to sign a document saying I took Cokes over a five year period sign this admission you will continue to work do not sign it we will fire you, that would of course be improper tactic.


False imprisonment consists of: (1) intentional confinement of the plaintiff within a limited area (2) against his consent (3) without lawful privilege for (4) any appreciable time, however short.


False imprisonment is an exclusively intentional tort. For liability to attach, the defendant must act intending to confine the plaintiff within boundaries set by the defendant, and the act must directly or indirectly result in such confinement. Confinement is defined as total detention or restraint of the plaintiff's freedom of movement, imposed by force or threats. The defendant must also be conscious of the confinement or be harmed by it. Finally, if the act is not done with the intention of confining the plaintiff, and the confinement is merely transitory or otherwise harmless, the defendant is not liable for false imprisonment

But one Ohio decision has ruled a threat of loss of employment, standing alone, is insufficient to establish false imprisonment when the plaintiff is present voluntarily and is otherwise free to leave. Walden v. Gen. Mills Rest. Group, Inc., 508 N.E.2d 168, 171-72 (Ohio Ct. App.1986).

Lack of lawful privileges
In a false imprisonment case, it is essential to recovery to show that the detention or confinement occurred without lawful justification. The employer seeking to escape liability has the burden of proving that his or her actions were justified. The detention may be justified, among other things, by factors arising from the employment situation, or there may be statutory authority that provides justification.

In the employment context, Ohio courts have held that it is not unlawful detention when an employer directs an employee to report to an office for questioning regarding irregularities or misapplication of funds This assumes that the employee is submitting to a mere directive, unaccompanied by force or threats, and that the questioning is conducted for a reasonable period of time.

As most state statute specifies, the shopkeeper's privilege requires probable cause, which is established when "facts and circumstances existing at the time of the alleged detention would have warranted a prudent man's believing that the accused had committed an offense." Absence of probable cause subjects the merchant to the similar but distinct tort of malicious prosecution.

Although the two torts are related, there are important differences between false imprisonment and malicious prosecution. While false imprisonment involves an injury to a person's liberty, a malicious prosecution action protects against an infringement of a person's reputation. The elements of malicious prosecution are: (1) malice on the part of the defendant in the initiation or continuation of prosecution, (2) lack of probable cause and, (3) termination of the prosecution in the plaintiff's favor. Unlike false imprisonment, there is no requirement to show a deprivation of liberty in a malicious prosecution claim.

There is one additional point to emphasize in regard to the lawful privilege to detain. False imprisonment is a continuing tort. So, "a person who intentionally confines another cannot escape liability by arguing that he or she was initially privileged to impose the confinement.
Once the initial privilege expires, the justification for continued confinement expires and possible liability for false imprisonment begins.