Unemployment benefits cannot be withheld from worker fired for confronting shoplifters

An administrative law judge found that Lowes could not withhold unemployment benefits from a worker fired for confronting shoplifters in violation of company policy. "In California, citizens have a right to affect a citizen's arrest when they see a crime in their presence," Dieter C. Dammeier of the California Unemployment Insurance Appeals Board wrote.

Jose A. Mendoza, a Lowe's associate for seven years, was terminated following an incident involving two suspicious individuals. Mendoza followed protocol by offering customer service to deter theft. One suspect fled with a $300 toolbox, and Mendoza confronted the second suspect, leading to a brief physical altercation during which the suspect dropped the merchandise and left. A week later, a verbal confrontation occurred when the suspect returned, prompting Mendoza to call 911.

Unemployment Insurance Code Section 1256 disqualifies individuals discharged for work-related misconduct from benefits. However, the employer must substantiate claims of misconduct, as established in Prescod v. California Unemployment Insurance Appeals Board (1976) and Delgado v. California Unemployment Insurance Appeals Board (1974), Dammeier wrote.

The judge said Lowe's policy of having its employees surveil and provide "customer service" to deter theft "puts employees in a precarious position."

"The employer wishes to have its employees curtail theft by monitoring and contacting individuals to provide 'customer service' however when the subjects cross the line into criminal conduct, the employer wishes the employees to do nothing," Dammeier wrote, citing California Penal Code 837, which permits citizens' arrests for crimes witnessed in their presence.

The judge reversed a ruling in Lowe's favor. He determined that Mendoza was not found guilty of misconduct and was entitled to unemployment benefits.

A spokesperson for Lowe's said they do not comment on personnel matters.