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If You Didn’t Write it…You Didn’t Say it

Posted on 11/6/15 9:55 AM

I read an article recently about a retailer who lost a law suit over an employee “policy” violation. Said violated policy wasn’t included in the employee handbook. The specifics of the incident aren’t important. There is a bigger truism illustrated by the court decision—The Real World and the Judicial World don’t always occupy the same space. The first is filled with assumptions of what people know or should know. The second dissects those assumptions…line by line…word by word. And yes, courts apply the “what would a reasonable person know or believe,” but that means we must first understand their definition of reasonable. It also implies that our specialized knowledge, our specific training, and all those short-cut terms we use are not common and consequently not necessarily something we can assume a “reasonable” person might understand. Often that means, if you didn’t write it down, then you didn’t say it.


I’m a believer in company codes of conduct. The code of conduct is a nice warm blanket that covers all those individual policies and rules that might get lost…or that we forget to write down. The code sets a foundation for one of the most important aspects of our operations—ethical behavior. I am also a firm believer that these codes should be simple, direct, and cover even the realm of “common sense” items.

The last belief born from my experience of raising five children. A world filled with surgical defense…”you said I couldn’t drink a coke before dinner…you didn’t say I couldn’t drink a root beer.”

Yes, we are employing adults, but when mistakes are made, when punishment is on the line, often even adults…and certainly defense attorneys, resort to the strategies we learned when we were twelve.

So the best counter defense is to ensure we cover, in the most general manner, all the things that would qualify as an ethical violation of company practice.

Think about it. We’re already pretty good at such inclusions when we write job descriptions. At every level of the organization, after all those specific things a job requires, we see that one catch-all line: Including other duties as assigned or required. That single phrase makes it, within reason, impossible to claim, “that’s not my job.”

Since ethics is an important part of employment, it would stand to reason that we should include both the specific and the general in our code of conduct.

One of my favorites is so simple that I am often greeted with strange expressions when I suggest it.

Employees are not permitted to borrow money from Company funds.

In twenty-five years, I’ve seldom met an employee who steals. They “borrow” things like cash, merchandise and supplies. They always intended to pay it back or bring it back…usually the next day. It is so often unfortunate that we spoke to them on Tuesday, since had we waited until Wednesday, we would have seen that they returned the money they borrowed and that this was all a big misunderstanding.

They borrowed it and you know what? 99% of the time there is no language in our policy or our handbook that states directly, simply, and conclusively…that borrowing is a violation.

Granted their claim will likely not stand. But the best loss prevention practices are the ones that prevent bad actions. When the language of our policies and codes of conduct remove potential rationalizations—like borrowed—we ultimately reduce the number of people who use such justifications for their actions.

My point, my contention, my opinion is: why be coy about the actions we consider ethical or criminal violations? Especially for the things that we truly have Zero Tolerance. 

So it’s a good practice to revisit that code of conduct (or create one) and really examine the language. View it the way a teen might view it—not just for what it says, but for what it doesn’t say. And define, in the simplest terms, those things we know can present a grey area—things like borrowing money or merchandise, taking home damages, sharing the employee discount, using the company’s shipping service for personal items…well you get the point.

You may never need to call upon that code to resolve an issue. But if you require it…just a single time in court…you’ll be happy for that clear, direct, so easy to understand language. 

Authored by: Ray Esposito    


Ray Esposito  Ray Esposito Linkedin 

Interested in learning more about how even the smallest of losses can add up and they can have a large impact on sustainability and margin? See how even a $13 a day loss can close a business in this free eVideo.


Topics: employee theft

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