In general, the law, with additional support from case laws, provides employers with certain privilege in discussing “business matters” even the dishonest kind with employees. So if an employee is seen or suspected of violating policy, stealing, or may have information pertaining to a loss, it is within our “right” to have a discussion. Such matters, handled properly and professionally are fine, but…and this is a big But…there are many opportunities along the way to step off that narrow path and create company liability.
The potential for civil or even criminal suits (like false imprisonment) are great enough to leave no room for “winging” an internal investigation. And some of the biggest missteps are those that are easiest enough to avoid.
Take a Deep Breath
Seasoned investigators don’t get emotional over internal theft. Yes, we have a passion to resolve and prevent it, but we don’t take dishonesty personally. An investigation is like any other business endeavor—it’s a process. Often, the greatest harm is done by an inexperienced manager or employee who brings emotion…hurt, anger, righteousness…to the discussion.
Emotions lead to unclear thinking, accusations, and often a loss of control in terms of the conversation. Rather than resolving the issue and sticking to the facts, the conversation veers off into personal attacks or in the worst case…a screaming match.
The most important determinant in case resolutions is the level of training and experience the interviewer possesses. It may be frustrating to the untrained observer, but a methodical step-wise approach is the best way to ensure an investigation is both successful and that it limits liability.
Having an investigative protocol ensures that when an event occurs we have an agreed upon process that is not altered based on the emotions of the event.
The protocol should included the steps we take, the process we follow, the communication we employ (the to who, when and the what), and the partners involved in each of the decision making points of our investigation.
Defense Against the Dark Art of Winging It
When an internal investigation turns into a lawsuit by the former employee, 99% of the time you find that brief moment in the process where the seasoned investigator will ask, “Uggh, what were you thinking?”
LP professionals are out there every day conducting hundreds of interviews and there is a very good reason why there are so few lawsuits—Process.
The “Rut-Ro” moments appear when someone goes rogue in the interview process and violates the standard package of “Must-Ensure” for internal dishonesty interviews.
Here is a list of the most common issues, followed by the preventive process we can place in a protocol
The Liability Risk
I was falsely imprisoned
This is a pretty standard claim for lawsuits involving loss prevention professionals. It’s a favorite of attorneys because although case law is pretty clear on our right to have a discussion, the courts are willing to hear the details to see if perhaps the limits were pushed.
If we must defend against the claim we want to be certain that nothing, and I mean nothing. . . even hints that we held someone against their will. That requires the employee has clear access to the interview room’s door, with no one between them and that exit. It means no threats are made to their physical safety or verbal statements that suggest public humiliation if they don’t stay.
I never admitted to anything
They say a verbal promise isn’t worth the paper it’s written on. It’s pretty much the same for an admission. Sometimes even in the presence of direct video evidence, it can be hard to prove our case if all we have is a conversation and confession between two people.
A written statement is a must have for every interview and with proper training and technique they aren’t difficult to obtain. It’s important because when a dishonest person writes what they did, in their own words, and cites there personal reasons and feeling about the act, it is difficult for them to retract later or say they never said it.
They made me write that
Which is of course the fallback to: I never admitted anything. Most people who serve on a jury have little if any understanding of the interview process. They only know what they see on television, so it’s easy for them to imagine bright lights, multi-day interrogations, and threats by the interrogator.
A witness goes a long way to clearing up the “they made me” complaint. During the interview itself is best but at a minimum the witness should confirm that the employee wrote what they meant in their statement and was not forced to write it.
They kept me in there for hours
Believe it or not, the former employee may truly believe this to be the case. Anxiety, stress, and fear play havoc with our internal time keeping neurons. If in fact we do keep them for hours, then the former employee has a pretty good case for false imprisonment.
In addition to limiting the amount of time involved in an inquiry, the employee, regardless of admission should note either on a form or in their statement, the time they entered the room and the time they left. If they took a break for the restroom, that should also be noted. The process serves two important purposes. First, sometimes just the act of writing the times down will remove the possibility of them “misremembering” the length. Second, if they make a claim of an unreasonable detainment time, there are facts to support the amount of time actually involved.
This list, of course, isn’t exhaustive of all the places liabilities may occur. Outside of the interview we also need to consider things like consistency, investigative methods, termination standards, reports, and evidence handling.
For these reasons, even trained investigators and interviewers should regularly review best practices to ensure their next investigation is a solid as their last.
Untrained employees can be a part of the decision-making processes, but they shouldn’t conduct investigations or interviews. Investigations require both training and experience, and interviews can be high liability without the proper certification from experts like Wicklander and Zulawski.
We can’t avoid every potential lawsuit or complaint, but with the right protocol and the correct training, we can at least properly defend against the cases brought.
Authored by: Ray Esposito
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