Employees are responsible for a large percentage of retail theft. Internal thieves can embezzle funds from the register, activate and spend gift cards and take product off the loading dock and put it into the trash to pick it up after their shift. Employers must take steps to reduce the amount of employee theft while simultaneously treating their employees with the appropriate level of respect. This can be deceptively challenging.
Employers have the right to retain their property and not have it stolen by their workers. To enforce their property rights, employers may take certain measures to monitor employees. Employers have the right to monitor employees on camera in areas in which they have no reasonable expectation of privacy or in which they have consented to being monitored. The employment agreement and all entrances to the building should contain an advisement that the employee is being monitored on video and audio. Employers may not record restrooms.
In some states, employers also have a right to use force. This so-called “shopkeeper’s privilege” simply allows the shopkeeper to use reasonable force to detain a thief until the police arrive. If an employee is suspected of theft, the employer may detain the employee to investigate the matter. This is generally not advised, as crossing the line from a reasonable detention to a false arrest or false imprisonment is easy, as is using excessive force. Employers may also contact the police when they believe that an employee is stealing to arrest or cite the employee.
In practice, using physical force against a thieving employee is usually unnecessary. Employers have a large amount of detailed personal information regarding their employees and fleeing the scene will not help the employee evade apprehension. Additionally, many employees and employers would prefer to keep small-scale thefts out of court. For limited thefts, employers will usually terminate an employee and not press charges. Instead, the employee and employer will make other arrangements, such as compensating the business, resigning voluntarily, and staying away from the business.
Gracefully Warning Employees Not to Steal
Employees expect to be treated fairly. Explicitly holding an organizational meeting and advising employees not to steal implies that at least some of the employees are potential thieves. While employee theft comprises a large portion of all retail shrinkage, calling attention to the issue will reduce employee morale. Employers who treat employees as thieves will offend employees and incur a high turnover rate, which costs the organization money.
At the same time, employers must have clear guidelines expressly spelled out for all employees in the event that an employee does steal. The best way to deal with such competing issues is to address the issue directly in the employee manual and indirectly in person. The employee manual should specify that theft is an offense that will result in immediate termination and prosecution to the fullest extent of the law. If an employee steals anyway, always follow through on the manual. Including a provision in the manual discussing the legal consequences of the theft may also be prudent.
Indirectly addressing the issue in person requires tact. When orienting a new employee or installing a new system, employers should take the employee or employees on a brief tour of the building. Point out all available cameras, including those over the cash registers, in the stockrooms, and near the trashcans outside. Do not raise the issue of employee theft; instead, point out the surveillance system and all security features as a precaution designed to protect employees in the event of a crime. This sends a message to potential thieves without sending any offensive messages.
Employee Theft and the Law
Anyone who steals merchandise can face a variety of charges, but as one Ellicott City criminal defense attorney has noted, “the severity of this type of charge in Maryland increases if you steal from your employer.” Thieving employees are often charged with either larceny or theft. Larceny occurs where one takes and carries away the personal property of another with the intent to permanently deprive the owner for the actor’s own gain. Theft is similar, but the goal of theft is to take the item for pecuniary gain. If an employee steals an item because they intend to use the item, it will usually be a larceny charge; if an employee steals an item with the intent of reselling it, the charge will normally be theft.
Larceny and theft are segmented further into petty larceny or theft and grand larceny or theft. Petty theft or larceny is usually a misdemeanor while grand theft or larceny is generally a felony. The value of the property determines whether an act of theft or larceny is petty or grand, and different jurisdictions apply different values differently depending upon the property. A felony record is far more damaging to an employee’s long-term prospects than a misdemeanor conviction, as a felon loses certain rights and employers frequently discriminate against felons.
If the employee was entrusted with the property, the employee may be charged with embezzlement. Embezzlement occurs where one wrongfully converts property owned by someone else and entrusted to the actor’s care to the actor’s own use. This commonly occurs with cashiers pocketing funds in a retail setting; employees will not ring up sales or ring up sales for a lesser sum and pocket the difference. Embezzlement can be a misdemeanor or a felony depending upon the amount.
A burglary charge may also be added to the underlying charges. If the employee entered the building with the intent to commit a felony, regardless of whether the employee used force, the employee may be charged with burglary. Burglary is a felony independent of any other felonies with which an employee may be charged like felony embezzlement or grand theft. Burglary is a serious crime and often results in jail time.
Employees who violate the law can face a variety of harsh penalties, but many do not. Businesses are often reluctant to press charges for petty offenses and the low wages and high turnover of retail workers ensures that there is no end of potential suspects. Combating internal theft requires visible deterrents and a culture of open communication with management. At the same time, employees accused of misconduct are always entitled to a strong legal defense. Employees who are charged with an internal crime should contact experienced legal counsel to help address the charges. A single mistake does not define anyone’s character and it should not follow a person for the rest of his or her life.