We suspect an employee is stealing and want to try to get him to admit it. How should we approach our suspicions and confront the employee? Are there any legal risks to doing so?
Quick Answer
Employers should interview the suspect by presenting all relevant facts and making it clear that they are on a fact-finding mission. They should also take several other precautions to ensure that their investigation complies with all applicable legal requirements.
Legal Perspective
Fisher Phillips
New Orleans, Louisiana
You’ll want to be very careful about how you handle this situation. There are methods of catching thieves that could actually result in liability for your company, says employment law attorney Edward Harold (eharold@fisherphillips.com) of Fisher & Phillips LLP. Some potentially risky tactics:
- Hiding baby monitors or listening devices to catch an employee talking about stealing. It could violate anti-wiretapping or privacy laws.
- Putting the employee in a position where they can’t leave the room without “going through” a manager. It could lead to a false imprisonment claim.
- Going through a person’s purse or belongings. It could be an invasion of privacy.
- Using a lie detector to investigate monetary loss. There are strict federal rules on the subject.
Relevant Case Law
Habben v. G.F. Buche Co., Inc.
Schrader v. Eli Lilly and Co.
Bonidy v. Vail Valley Center for Aesthetic Dentistry, P.C.
HR Insight
Designer Greetings
Edison, New Jersey
A due diligence process would be the first step, says HR Director Sherri Petonic Lyons. For example, if your company has cameras, you’d want to check the cameras first to see if a video shows the employee stealing.
But if your company doesn’t have surveillance cameras, then you might double-check your inventory. See if you can determine a timeline that possibly puts the employee there. Do not accuse the employee, unless you have evidence to back it up. I’d strongly encourage you to consult legal counsel.
Vaxcel International Co. Ltd.
Carol Stream, Illinois
HR and the employee’s direct manager should have a conversation with the employee, letting them know what the suspicions are and any evidence that might have led to the suspicions, says HR Manager Kim Schrader.
The employee should have a chance to either deny the suspicions or give their point of view. Any other leads that may come out of the investigation should be investigated. If everything points back to the employee, then disciplinary actions can be taken. During the investigation, the employee can be put on leave or be restricted to certain duties which may reduce the possibility of further theft.
RedCapeRevolution.com
Naples, Florida
Have a conversation with the employee, suggests Darcy Eikenberg, an executive coach in Florida.
Rather than making accusations, say something like, “I’ve noticed the supply of copy paper going down every night, and yet our use doesn’t match that. Would you happen to know anything about it?” Then listen.
If the person has been taking things (in this case, copy paper), they may have rationalized it as perfectly OK. For example, they might reply, “I work from home two days a week and I need paper there, not here.”
A frank conversation may uncover hidden assumptions on their part and yours. If you prove behavior that’s clearly out of line, you’ve given the person the chance to admit it, and you can resolve it per your policies.
The bottom line: Suspecting and knowing are two different things. Don’t waste a lot of time suspecting without getting all the facts; it’s not fair to your employees, and it’s exhausting for you.
The Cost of Noncompliance
Fired for theft, ex-worker sues for defamation, wins $224K award
Who was involved: Apple Health Care, Inc., a healthcare facility in Connecticut, and an employee who was fired for theft.
What happened: The niece of a healthcare patient told an employee she could have the patient’s furniture after the patient died. The employee kept two chairs for herself and gave a dresser to a supervisor. The rest of the furniture went to the facility where they worked. However, the facility prohibited accepting gifts from patients and their families, so the employee gave back the pieces she had taken. After an investigation, the facility fired her for theft, even though it knew she had the niece’s permission to take the furniture. She sued for wrongful discharge and defamation.
Result: The case reached the Connecticut Supreme Court, which upheld a $224,000 award on the defamation claim. The court agreed with the finding that the company acted with malice because it knew the employee didn’t steal when it fired her, and the company broadcast that information to other employees within the company, who then spread rumors about her.
Info: Gambardella v. Apple Health Care, Inc., 969 A.2d 736 (Conn. 2009).
Jury orders Wal-Mart to pay $8.5M to former employee accused of shoplifting
Who was involved: Wal-Mart, the world’s largest retailer, and a former employee who was fired for allegedly shoplifting from a store located in Mississippi.
What happened: The employee was accused of shoplifting chewing tobacco and was fired. He sued, alleging wrongful termination and defamation. His lawsuit alleged he suffered harm after the company falsely accused him of theft and spread those allegations among his co-workers.
Result: A Mississippi jury ordered Wal-Mart to pay the former employee $8.5 million for the defamation claim.
Info: Jury Verdict in Lamon Griggs v. Wal-Mart Stores, Inc., 8/31/02.
Key Takeaways
- Do not jump to conclusions or make assumptions when investigating workplace stolen property.
- Interview the suspect and present relevant gathered facts, making it clear that you are on a fact-gathering mission and are not attempting to secure a confession from them.
- Talk to any potential witnesses.
- Always focus on the facts when talking to the suspect and witnesses.
- Do not go through a suspect’s personal belongings.
- False allegations of stealing may lead to a defamation claim by an innocent accused employee.
- As part of your investigation, do not record the communications of suspected employees.
- Document the entire investigation process carefully and fully.
- Federal law significantly restricts the ability of private employers to subject employees suspected of theft to polygraph examinations.
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