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The Labor & Employment Report

Employee’s Right to Remain Silent Trumps Employer’s Right to Terminate?

Posted in Laws & Regulations, Litigation

It seemed obvious to me, and I imagine most employers would agree, that if an employee refused to participate in a police investigation into workplace theft, you could terminate that employee.  Well, we all might be wrong (??!!), according to a federal district court, in the case of Gomez v. Garda CL Great Lakes, Inc.

Two armored car drivers reported to their supervisor their suspicion that money was missing from one of their sealed cash bags.  The employee drivers cooperated during an internal investigation, and even passed a polygraph exam.  But during the police investigation, both employees chose to invoke their Fifth Amendment right to remain silent.  The supervisor questioned the employees about their refusal to cooperate with the police investigation, pointing out that the company was working with the police.  Both employees insisted on exercising their right to remain silent, and (unsurprisingly, at least to me) both employees were fired.

The employees sued, claiming that there was a conspiracy between the company and the police to deprive them of their constitutional rights, that they had been denied due process, that they had been retaliated against for exercising their constitutional right to remain silent, and that their termination violated public policy.  The company asked the court to dismiss the case, arguing that the employees had not made sufficient allegations in their court complaint to support these claims.  The court, however, disagreed with the company, finding it was possible that, as alleged, the supervisor might be liable under these claims.

The court first found that the employees had sufficiently alleged an agreement between the police investigator and the supervisor to terminate the employees if they exercised their Fifth Amendment rights, as required for the conspiracy claim.   As for the due process claim, although a private person, like a supervisor, is not normally subject to this type of claim, they can be if they conspire with a government entity.  Therefore, the court found that, because of the allegations of joint conduct between the police and the supervisor, there was support for the claim that the supervisor had deprived the employees of a liberty interest – “the liberty to follow a trade, profession or other calling” – without due process.  And the court determined that it was possible to find that the supervisor had retaliated against the employees for exercising their protected constitutional rights.  As for the company, the court held that the constitutional right to remain silent is a public policy, and that it was possible that terminating the employees violated that public policy.

This is not the end of the story – this lawsuit has just begun.  The supervisor and the company will have the chance to prove that there was no conspiracy with the police.  But the fact remains that it is possible that they won’t be able to do so – and can end up paying the employees money because they made the presumably reasonable decision to terminate those employees for failing to cooperate in the police investigation!!