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Justices Open Door to Suits by Employees : Courts: Ruling allows woman to charge false imprisonment over questioning in theft. Workers’ comp is generally the sole recourse for physical or emotional injury at work.

TIMES LEGAL AFFAIRS WRITER

The California Supreme Court, providing a crack in the shield that protects employers from most workers’ suits, held Thursday that a Los Angeles Fedco employee can sue the chain for falsely imprisoning her during an interrogation over whether she stole $4.95.

The unanimous decision is significant because California workers generally have no recourse in the courts when they are injured physically or emotionally on the job. They can obtain relief only by collecting limited amounts from the state’s workers’ compensation system.

In the case before the high court, sales clerk Julie Fermino said that in 1990, managers and security agents at Fedco Inc.'s Westside store imprisoned her for more than an hour in a windowless room.

Fermino said a security agent falsely charged that witnesses had seen her pocket a $4.95 sale, refused to let her call her mother, “hurled profanities” at her and pressed her to confess “the Fedco way.”

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The Fedco way, as outlined by the security agent, was to award one point for each time the clerk denied her guilt. When the count reached 14, the agent told her, she would be turned over to the police.

The clerk, then 18, said she repeatedly asked to leave and when she moved toward the door, one of the security guards slid in front of it, threw up a hand and gestured to stop.

After she became hysterical, she said, the security agents finally said they believed her and let her go. She quit her job shortly thereafter.

In an opinion written by Justice Stanley Mosk, the court held that false imprisonment is not a normal aspect of employment, even if it is motivated by an employer’s reasonable objectives.

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“False imprisonment is, by definition, an unreasonable and indeed criminal confinement,” Mosk wrote. “It is the close cousin of assault.”

Fedco had argued that the alleged false imprisonment was carried out in a reasonable manner and asserted the store’s right to hold and question employees to protect against theft.

The Supreme Court ruling overturns two lower court decisions that denied Fermino the right to proceed with her suit. Now a student and part-time cashier, Fermino is seeking $200,000 for her pain and suffering and unspecified punitive damages intended to deter Fedco from such behavior.

Robert M. Ball, a Beverly Hills lawyer who represented Fermino, said security departments of major stores are under pressure to “produce numbers to justify their existence.”

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“You have to wonder,” Ball said, “whether this type of treatment of employees is somewhat connected to the recent rash of workplace violence.”

The case posed a test between merchants’ rights to protect themselves against theft and employees’ rights to not to be held against their will at the whim of their employers, he said.

The court said it was not denying employers the right to detain workers suspected of theft or to fire them if they refuse to cooperate. But if the employers’ actions go beyond reasonable interrogation and detention and become false imprisonment, they are not protected from lawsuits.

Ball said the case met the test of false imprisonment because Fermino was denied the right to leave and threatened with arrest if she did not confess.

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Fermino said she was ecstatic about the decision. The Fedco job was “my first real job,” she said, and the interrogation was “totally humiliating and frightening.”

“I would never want that to happen to anyone else,” she said.

The court’s decision probably will trigger more lawsuits alleging false imprisonment, said Steven Weston, attorney for Fedco. The chain did not dispute the facts of the case, arguing instead that such suits are barred by workers’ compensation law.

Now that the suit can proceed, Fedco will investigate Fermino’s allegations thoroughly, he said. “Fedco has not committed any improper acts,” he said.

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Victor Schachter, a San Francisco attorney who represents employers, said the case was important because it defines a line between normal and abnormal employer behavior and appears to contradict previous decisions by the conservative court.

“I am surprised because there have been other outrageous kinds of cases in which the courts have said that it is included within the workers’ compensation system,” Schachter said.

But he said he doubted the decision would trigger massive litigation because the employer’s alleged behavior in the case was extreme.


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