PREVENTION PROFESSIONALS SHOULD BE AWARE OF LIABILITY CONCERNS
When it comes to interviewing and interrogation, most loss-prevention
specialists think about how to most effectively question an employee,
read that person's behavior or use persuasive tactics to elicit an admission
of guilt. What generally does not come to mind are the liability issues
unique to the field. The role of the specialist is to protect company
assets. Yet the monetary damages from a single lawsuit can cost a company
much more than the combined thefts committed by all of the dishonest employees
working for a company.
The goal of a loss-prevention investigation is to first ascertain whether
an act of wrongdoing occurred. This is generally followed by interviews
with employees who may be connected to the wrongdoing, which may result
in the interrogation of the employee believed to be responsible. Occasionally,
an investigator will make a mistake and accuse an innocent employee.
DEFAMATION OF CHARACTER
Some investigators believe they are insulated from lawsuits because there
was no intent to defame an employee's character. While intent is necessary
to prove slander, in some situations, when the false statement directly
relates to a person's job performance, the courts will occasionally rule
intent was implied. The one sure defense against a slander suit is to
make certain the false statement was not made publicly.
To protect against claims of slander, the results of an interview or interrogation
should only be revealed to interested parties, who are immune to the public-exposure
element of slander. Certainly loss-prevention investigators qualify as
interested parties. So do the employee's supervisors. However, if a false
statement or derogatory remark is released to co-workers, a slander suit
This claim is almost always included in the list of grounds filed against
a company in a civil suit involving an interview or interrogation. A recent
example is typical of this charge.
An employee was asked to meet with loss-prevention investigators at their
location for an "interview," which started early in the morning
and culminated nine hours later. Several loss-prevention investigators
and a corporate attorney were present during the session. While the initial
conversation consisted of non-accusatory questions, it soon became accusatory.
During the entire nine hours, the employee was never left alone, and a
female representative of the company even accompanied her when she took
bathroom breaks. The employee eventually complained of feeling ill and
nauseous, but the questioning continued. Around 5 p.m., the employee broke
down emotionally and, while in tears, stated "I can't take this any
more, I want to go home." The corporate attorney responded, "You
can't leave until (company vice president) arrives to hear what you've
False imprisonment is defined as "depriving a person of his/her freedom
to leave an area." The allegation does not necessarily require physical
restraints such as handcuffs or a locked door. The restraints can be psychological
as well. Court decisions upholding false imprisonment have evaluated the
number of investigators in the room, the employee's freedom of movement,
being interviewed in an environment where the employee is dependent on
the investigator to return home, the physical positioning of an investigator
between the employee and the exit door, and interviewing an employee behind
a locked door. It is generally a prima facie case of false imprisonment
where the employee asks or attempts to leave the room and is prevented
from doing so.
The consultation in the previous case was very straightforward. There
was no question this employee was falsely imprisoned. The attorney's verbal
refusal to allow the employee to leave the room would have been sufficient
to support the charges. In addition, it was clear the employee was essentially
under the control of investigators during her entire nine-hour ordeal--she
was never left alone. Contributing factors supporting false imprisonment
included the use of three investigators against a single employee and
the room arrangement, where the employee was instructed to sit at the
far end of a long conference table and the three investigators surrounded
her, physically blocking her exit from the room.
PRESENCE OF A THIRD PARTY IN THE ROOM
To instill a sense of privacy, it is recommended an investigator work
one-on-one with an employee. This practice helps refute claims of false
imprisonment that may arise when a number of investigators "gang
up" on an employee. However, there are situations when it may be
advisable to have a third party in the interview room as a witness.
The most common occurrence is when a male interviews a female. Under this
circumstance, a female witness may refute unwarranted claims of sexual
misconduct made by the employee. To maintain a sense of privacy, position
the witness behind the employee's chair and ask the witness to remain
silent throughout the interview or interrogation.
In some situations, the employee will request a coworker be present during
the interview. At one time, this right only applied to union employees
through the 1975 Weingarten decision. In 2000, the case of Epilepsy Foundation
of Northeast Ohio v. N.L.R B. extended this right to all employees. While
the investigator is not required to advise an employee of this right,
the employees unsolicited request for a coworker to be present during
the interview must be honored. The investigator, however, can suggest
conditions for this person's presence. He may ask this person sit behind
and to the side of the employee's chair, and request the co-worker's interference
with the interviewing process be limited to requesting clarification of
questions asked of the employee or other substantive issues raised during
The liability issues resulting from improper interrogation techniques
range from infliction of emotional distress to wrongful discharge. It
is recommended not to interrogate employees who are pregnant or who have
had recent symptoms of heart problems. It is important to anticipate the
possibility of an attorney arguing that stress of the interrogation led
to a miscarriage or heart attack. In addition, an interrogation that is
unreasonably lengthy may be cited as causing emotional distress. Interrogations
should be discontinued after four hours if there are no signs of progress.
Most employee acts of wrongdoing can be resolved with an interrogation
lasting considerably less than four hours.
If a confession was obtained under coercion or was compelled, it may be
suppressed as evidence. Under this circumstance, the employee may file
a wrongful discharge suit because the employer acted upon improperly-obtained
evidence. The issue here is not necessarily whether the confession is
untrustworthy (false), but whether it was essentially the product of the
employee's free will (voluntary). Coercion refers to physical force or
constraints, whereas compulsion relates to threats designed to overcome
a person's free will. For the purpose of assessing a confession's voluntariness,
the statement, "You're not leaving this room until you sign this
confession" would constitute coercion. So, too, would be any actual
or threatened physical force (shoving, slapping or striking) directed
toward the employee. A threat of charging the employee with an exaggerated
criminal offense especially when coupled with a promise that charges will
not be filed if the employee confesses-is a classic example of compulsion.
Most confessions are suppressed not because they are false, but because
a court ruled them to be involuntary.
In addition, some confessions are nothing more than a signed statement
admitting alleged guilt. Even when the employee writes out his own confession,
it may be inadequate for court purposes.
Consider the following confession: "Today I told Mr. Jones from loss
prevention that I stole a $2,000 deposit from the processing room last
Friday. I am very sorry I did this and I will never do it again."
This employee's statement is not confessing to the theft. He is only relating
what lie told the investigator. It is ambiguous as to whether he is sorry
he stole the deposit or sorry he told the investigator he stole it. Does
his statement mean he will never steal again or he will never admit stealing
again? For a confession to stand up as evidence in a court of law, it
must cover all of the elements of the offense and contain corroborative
information about the employee's act of wrongdoing. The most defensible
type of corroborative information to include in a confession are details
about the act that were not known until the employee confessed. Examples
in the preceding case would include how the money was removed from the
building, where the money was spent and what lies were told to family
members to cover the employee's sudden abundance of cash. The following
situation is illustrative of these points:
Three off-duty police officers were hired as loss-prevention staff for
a retail clothing store. The officers took an employee suspected of theft
into a small room, sur- rounded the employee, and bombarded her with accusations.
During their depositions, they acknowledged purposefully exposing their
firearms as to "let her know we were serious." The employee
maintained her innocence until one of the officers stated, "If you
don't admit stealing this money, we will spread the word all over town
that you are a thief, and we'll make sure you never work in this town
At this point, the employee broke down and agreed to sign a confession
written by one of the officers that essentially said, "I stole $1,000
from the store." The employee never provided any corroborative information,
nor was it ever proven she stole the money. Following her successful lawsuit
for false imprisonment and wrongful discharge, the employee received considerable
The duties of a loss-prevention specialist require constant judgments
involving interactions with employees. This is especially true during
an interview or interrogation. One way to reduce liability exposure is
to dictate proper practices in a loss prevention manual. In theory if
these practices are all followed, the risks of subsequent law suits are
Writing meaningful guidelines in the area of interviewing and interrogation
practices is a difficult task. If the guidelines are too restrictive,
the effectiveness of investigations may be hampered because investigators
lose their ability to respond to unique situations that come up during
an interview or interrogation.
An example of a guideline that is too restrictive would be, "At no
time shall an investigator ask accusatory questions during an interview."
In the majority of cases this is a good practice. However, what if an
employee makes an incriminating statement during the interview and, in
an effort to corroborate the statement, the investigator asks a follow-up
question. The employee, at this point, starts to retract his admission.
Under this circumstance, any competent investigator would engage in accusatory
statements to develop the full details of the admission.
On the other hand, if the guidelines require interpretation, they serve
little value to curb behaviors that may lead to a liability suit. An example
of such a guideline is, "The investigator shall not engage in any
interrogation technique that is apt to cause an innocent person to confess."
Two investigators may form completely different opinions about the probability
of the same interrogation technique causing a false confession.
A final consideration: a loss prevention manual is subject to subpoena.
An attorney can spend hours during cross-examination dissecting the manual
in an attempt to get the investigator to acknowledge violating some of
the guidelines. The final implication, of course, is the manual was written
to ensure against liability claims and, if the investigator did not follow
the manual, the company must be at fault in the present suit.
I have trained thousands of investigators over the last 20 years. Often
a student will ask, "If I do such and such during an interview or
interrogation, could the employee file a lawsuit?" The answer is
invariably "yes." An employee who has been terminated from a
company is unlikely to be forthcoming about his wrongdoing to friends
and family members. Anger, embarrassment and guilt will often motivate
the employee to project blame onto the company, and a lawsuit may be filed.
What the loss prevention specialist can do is anticipate situations that
may lead to a possible lawsuit and make certain there are no legitimate
grounds to support it.
This article is not intended to offer legal advice, but to raise the awareness
of some unique liability issues faced by loss-prevention specialists.
If an employee asks for an attorney what should be the investigator's
response? If an employee attempts to leave the interview room, can the
investigator threaten him with possible disciplinary action for failing
to cooperate with an internal investigation? Does telling an employee
his confession will assure him a good job reference constitute an illegal
promise of leniency? The answers to these and many other procedural questions
depend on a number of circumstances. The best way to ensure correct decisions
are made during an interview or interrogation is to receive training by
professionals knowledgeable about these issues and consult with your corporate