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Bad Statements: The 4th Liability

Posted on 10/29/13 1:00 PM

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Person writing statementThe human brain is a fascinating, powerful and extremely lazy organ. Much like a teenager writing a 9th grade English composition paper there is no shortcut that doesn’t seem like a great idea. Why spend hours formulating an argument that has already been so well said on Wikipedia? Much like the brain, the teenager assumes it is the product and not the process that is most important.

Inexperienced and sometimes experienced interviewers fall victim to such shortcuts during the statement writing phase of dishonesty resolution. An employee’s verbal admission seems the only required component and consequently the details of the employee’s written statement seem less significant. On the day of the event “everyone” seems to understand “what” the employee “meant” by her vague references and missing details…we “got her” and that’s all that matters… until the lawsuit a few years later when the company realizes that what was “said” isn’t exactly what was written.

A recent (and by recent I mean within the past year) event brought this point to my attention. Alleged dishonest employee stated that she had “not done” what she had been accused of doing years earlier and this fabricated company lie was harming her current employment opportunities. There was a statement by the employee on file and while at the time of the incident it seemed to mirror her verbal admission, reading it void of being present at the interview, rendered it a little vague.

Most trained interviewers probably saw the truth in the statement. Most probably understood that she was writing a soft confession - one where she admits but not directly. Unfortunately most readers in the Press or the general public do not have such training and could only rely on the written words which vaguely referred to doing something, but did not directly state that the “something” was “stealing.”

The point is that even a good talker and a good interviewer can create liability if she is not a great statement taker. Professional interview training always includes a statement taking component and for good reason. Without the proper statement a company faces the possibility of backlash whether that be a lawsuit or being tried in the court of public opinion.

A strong, concise and complete written statement ensures three things and in doing so greatly reduces the liabilities created by not doing these things:

1. Clarity of Action - A proper statement, written in the associate’s own words makes it clear to every reader that the statement is the associate’s version of the actions. The common reader should be able to understand exactly when, what, where, and how an associate took actions that violated the company policy or the law. That doesn’t mean it must be War and Peace in length, just that it contains all the facts related to the incident. When these things are not included in a statement, we leave the company open to possible interpretations as to what “really” was admitted or not admitted. In the statement review, a professional interviewer must struggle against his brain’s desire to short cut the process. To force himself not to accept and “understand” the meaning of implied statements or to see a connected story where one does not exist. In other words the interviewer must forget what she just heard and focus on what was just written. Such clarity makes it difficult for a person to later claim - that’s not what I meant or I didn’t say I did those things.

2. Intent of Action - A proper statement means we can’t be accused of “twisting” a person’s words or misunderstanding his actions. “I took it” is easier for a dishonest person to write, but it hardly demonstrates the clear intentions of “I stole it.” For the inexperienced the words can make complete sense. The brain sees the “I took it” and clearly defines the intent of those words based on the current conditions - a theft interview. But when examined by other brains, under other conditions, those brains may assign different intentions. Much like the teacher’s intent for the student to learn the process as much as deliver the product. To clarify that intent schools have plagiarism policies to and software programs to identify potential violations. Nothing demonstrates intent better than the writer describing in his own words “why” he “stole” a specific thing. Going back to the recent case cited, I am confident the article about the mean lie fabricating retailer would not have made the news if the statement read, “I was mad at my supervisor for cutting my hours and didn’t have enough money so I stole product x.”

3. Record of Action - it is questionable if no statement is worse than a bad statement. But since we are avoiding liability with proper statements, we’ll assume that no record of the action is if not the worse thing then at least a very bad thing. Clearly 99.9% of the time, statements will sit on file without ever serving a future purpose. Still if needed, it will most likely be needed at some point that most if not all of the major players have moved on. In many cases it might be the only remaining witness to the event. A record of actions ensures that the associates words, her intent and clarity are forever (forever defined by state statutory limitation laws) available.

If the statement contains all the necessary components of who, what, when, where, how, and why, then that statement becomes the center of the case which is exactly our intent. The defense must first prove whether or not the terminated (or arrested) employee was coerced to write those very detailed and specific sentences. That is they must dispute the evidence for the company’s actions e.g. the former employees statement, instead of making a case that no evidence exists. It will be nearly impossible to do such if it is in the former employee’s own handwriting, her own words, stating no promises or force was used, detailing the actions, demonstrating intent, and witnessed by a third person who validated that this was the true statement the employee wished to provide.

That is a much better discussion for us, than one where we are trying to convey our interpretation of what the writer meant when she wrote, “I did it,” “I took it,” and “I am writing about the mistake I made.”

 

 Authored by:

Ray Esposito   Ray Esposito

   Ray Esposito Linkedin



Check out the other articles in this series:

Who's Doing the Interview? Part 1

Interviews: The 3 Liabilities - Part 2

 



The 7 Laws of Employee Theft The 6 Principles of Loss Prevention


Topics: employee theft, policies and procedures, Audits and Investigations