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Police Want Info About An Employee? Be Cautious As An Employer In Your Response; But Honesty Is Still The Best Policy

If employers act as honest brokers of fact, cooperate, and provide full and accurate information about an employee when law enforcement officials ask for investigative information about a potential crime in the workplace, the worker can’t successfully sue for false arrest, even if the employee is never formally charged or eventually found not guilty.

Recent Case: Employee worked as a clerk at a grocery store. When local township police received a customer complaint about a lost credit card that had been used at the store without authorization on at least three occasions and asked the store to review security videos and to provide information about the identity of employees depicted in the reviewed videos on days when the credit card was illicitly used, the employer provided the requested information and was fully cooperative with police. Employer did nothing to initiate contact with law enforcement.

An employee who was identified in the videos reviewed, and who appeared to be present at the relevant checkout line at relevant times the day one of the questionable transactions took place, was arrested at the store, and charged with theft, along with another employee.  This employee was later released by police the same day as the arrest, and the charges were dismissed for lack of evidence. It turned out that though suspicions remained about the released employee, another employee confessed to the crime.

The employee who was criminally charged and ultimately released  by the police sued the employer, alleging that his supervisors exaggerated or generated the allegations against him on account of his race and a resolved equal opportunity complaint made over two years earlier, and sought monetary damages in federal court on the basis of federal civil rights retaliation claims.

The United States District Court for the Eastern District of Pennsylvania tossed out the lawsuit, pointing out that the employer hadn’t initiated the investigation or caused the arrest. Nor did it do anything other than respond to reasonable inquiries from law enforcement. Managers merely identified the employee from the surveillance video—no one from the store said he was the thief, or did anything to bring about the arrest. (Perry v. Red­­ner’s Markets,  No. 09-5645, ED PA, 2013)

Final note: This employee also claimed he was fired. However, the court ruled against the employee on this factual point as well; holding it was clear that even after he was released from custody, he never went back to work and never asked the employer about the status of his job, and there was no evidence the employer took any steps to terminate the employee’s employment after his arrest.

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