It is well established that a person is more likely to tell the truth in a private, controlled environment. It is desirable, therefore, to conduct an interview or interrogation of an employee suspected of wrong-doing away from that person's work area, and behind closed doors. However, if the investigator exerts too much control over the individual, he or she may invite an allegation of false imprisonment. The best defense against such a claim is to initially advise an employee that the interview is voluntary and that he or she is free to leave at any time. Whether the advisement is verbal or in writing, it must clearly acknowledge the employee's right to terminate the interview. For this statement to be meaningful, any unambiguous effort by the employee to terminate the interview must, of course, be honored.
To help further document the voluntariness of an interview the investigator should generally provide the employee with some notice prior to the interview. This advance notice will give the employee the opportunity to contact an attorney, family member or union representative for advice. Ten minutes of prior notice for an interview is sufficient provided that the employee has access to a phone. In this regard, while it would be acceptable to ask an employee to turn off their cell phone prior to an interview, it would be improper to confiscate the person's phone.
There are some circumstances in which an interview may be conducted without giving the employee any advance notice. In some cases, it may even be necessary to create a false pretense for the interview in an effort to have the employee appear at a desirable interviewing location. If an investigator decides to use subterfuge or surprise in an effort to elicit information from an employee, there should be an identifiable reason for doing so, e.g., fear that evidence would be destroyed, fear that the employee will not show up for the interview, etc.
Over the years an informal list of criteria has been developed to assist courts in evaluating a civil claim of false imprisonment. One of these is the dependency of the employee on the investigator to leave the area. Consider the situation where the investigator drives an employee to corporate headquarters ten miles from the employee's car. Further, that the interview is conducted on the second floor of the building and a security card is required to open exit doors or operate the elevator. This employee is clearly dependent on the investigator to leave the building or return to their car. While these circumstances certainly do not constitute illegal confinement, they may contribute to the perception that the employee's freedom to leave the area was significantly deprived. Consequently, the investigator needs to anticipate this possibility and perhaps offer the subject a pass card to leave the building or clearly advise the employee that at any time he or she can terminate the interview and they will be driven back to their car.
A similar circumstance may exist when an employee is considered to be "under control of the investigator". In an actual consultation, an employee was interviewed for seven hours by internal investigators. When the employee asked to use the bathroom she was accompanied by a female investigator to the bathroom. During lunch the employee was escorted by the investigators to the cafeteria where she ate her sandwich with the investigators. When she requested a break from the questioning, an investigator accompanied her to the hallway where they both sat until she was willing to continue answering questions. The employee was under the investigator's constant control the entire seven hours and was not allowed to be on her own until after she signed a confession.
The environment of the interview room is another criteria courts consider in deciding false imprisonment cases. It is a clear invitation to a claim of false imprisonment if the interview is conducted behind a locked door with only the investigator possessing the key to the lock. The same psychological effect may be claimed when the investigator positions his or her chair between the employee's chair and the door. Another contributing factor to this claim may involve three or four investigators simultaneously, and aggressively, questioning a suspect.
None of the preceding criteria is generally considered sufficient, in and of itself, to constitute false imprisonment. These cases are generally decided after considering the contribution and weight of multiple factors. However, there are statements or actions by the investigator that much more directly support a claim of false imprisonment. An action that certainly sends the message that a person is not free to leave a room is the investigator who physically restrains the employee from leaving the room. A statement that will have a similar effect is telling the employee that he or she is not free to leave. In the earlier mentioned consultation the employee, after seven hours of questioning, finally signed a confession and then asked to leave the room. She was told, "You're not going anywhere until (supervisor) hears what you have done." There was no question at this point that the employee perceived that she was not free to leave the interview room. This statement, coupled with the totality of other circumstances, resulted in a finding of false imprisonment and the jury awarded a substantial financial award for damages against the company.
In conclusion, there are many social and business situations in which a person may feel compelled to remain in an uncomfortable environment, e.g., attending a lengthy wedding, a boring meeting, a dinner with in-laws. Merely experiencing a strong desire to leave an area does not constitute false imprisonment. Rather, to support the civil claim of false imprisonment, a person must be subjected to identifiable circumstances, actions, or statements that would cause a reasonable person to believe that he or she would not be free to leave the area if they made an effort to do so. The following recommendations are offered to guard against claims of false imprisonment when conducting a non-custodial, voluntary interview or interrogation:
- Ideally, the subject should be given some notice prior to the interview.
- At the outset of the interview advise the subject, verbally or in writing, that the interview is voluntary and that the subject is free to leave at any time.
- Do not prevent the subject from communicating with others.
- Do not physically block a subject's exit from a room by positioning the investigator's chair between the subject and the door.
- The subject should be allowed to freely use the bathroom, obtain food or drink or to take a break without being accompanied by an investigator.
- Do not physically prevent a subject from leaving an area.
- Do not tell a subject that he or she is not free to leave the area.
In addition to the above considerations you should certainly check with your corporate legal counsel to ascertain any guidelines or procedures that they want you to follow when questioning employees.