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As it appeared in the Connecticut Law Tribune

How to Avoid Potential Pitfalls from a Plaintiff’s Employment Lawyer’s Perspective

Nina T. Pirrotti and Joshua R. Goodbaum , The Connecticut Law Tribune

Employers that have “the goods” on employees who have committed workplace theft may think they are in the driver’s seat. That may very well be, but we would admonish them not to drive that car too fast. Although employers may have every right to terminate their thieving employees, there are a multitude of circumstances to consider when navigating down that proverbial road.

Most importantly, employers should avoid rushing to judgment. Facts that at first blush seem damning may look different upon cooler reflection. Consider this: Our firm has settled two different cases in recent years in which our clients were accused of stealing from their employers. In one, our client confessed to the theft. In the other, she was caught stealing on videotape. In both cases, the employers paid our clients real money even though they had good reason to believe the clients had stolen from them.

How did we manage that? We like to think we are good lawyers, but the results were driven by the facts, not (just) our powers of persuasion. In one case, our client suffered from a mental illness, and there was compelling evidence that she had been coerced into giving a confession. In the other, our client, who complained about sexual harassment, took home food from the fast-food franchise where she worked, as many of her co-workers did. Yet she was the only one who was disciplined.

All this is to say that even a “guilty” employee may have multiple viable claims against her employer if the employer’s investigation is not conducted properly. This article will help employers avoid some of the potholes they can unwittingly fall into when they drive down the road of employee theft.

The guidelines for effective and fair investigations are no different for suspected employee theft than for any other suspected employee misconduct. Employers should:

• Rely on the neutral investigative procedures they (hopefully) already have in place;
• Use impartial investigators;
• Explore all reasonable leads and review all reasonably available evidence;
• Interview the knowledgeable parties out of the presence of other witnesses, so their stories are not contaminated;
• Ask open-ended, general questions, while avoiding leading questions that suggest an answer;
• Avoid confrontational questions that intimidate interviewees;
• Tailor their approach to the particular interviewee (such as someone with a known mental illness or learning disability);
• Evaluate the credibility of interviewees, based on (among other factors) their demeanor, their incentive to be truthful, and the internal consistency of their stories; and
• Be sure that interviewees know they are free to leave at any time.

Employers that suspect employees of theft should make like The Go-Go’s and keep everyone’s lips sealed, at least until the internal investigation is concluded.

Employers that fail to exercise appropriate caution about their suspicions of employee theft may well find themselves on the other end of a defamation lawsuit. Remember, the imputation that someone has committed a crime (such as theft) is considered defamatory per se, meaning the plaintiff does not have to prove economic damages to win at trial. Of course, truth is an absolute defense to a defamation charge. But it’s probably better—not to mention more cost-effective—to implement defensive procedures from the start than to have to prove an affirmative defense down the line.

In some circumstances, keeping everyone’s lips sealed may not be enough to protect against a claim of defamation. That’s because defamatory publications may result from an employer’s physical actions, even in the absence of a written or spoken communication. Consider what someone might think of an employee who, during business hours, is escorted out of the office (or restrained by) security guards or whose desk or even person is searched.

We live in a digital world, so evidence of theft may well be contained among an employee’s electronic information, such as email or social media. Searches of this sort of information present their own challenges and potential pitfalls.

To start, employers should implement policies stating that information accessed through their hardware may be monitored. Absent such notice, employers risk being on the hook for a number of common-law privacy torts, such as “intrusion upon seclusion.” Consent is critical to these torts, so employers should ensure that their employees understand whether and where they can expect privacy. “Bring your own device” programs, whereby employees use their own personal devices for work business, may functionally prohibit employers from accessing their employees’ devices, even with notice.

Employers should be wary of requiring their employees to provide access to the employees’ social media accounts. In fact, it is illegal in a number of states to request or require employees to provide such access. More than 20 states, including Connecticut, are currently considering bills of this very sort. Connecticut’s bill would prevent an employer from firing, disciplining or retaliating against an employee or job applicant who refused to provide a password to an online account or who filed a complaint after being asked to hand over the password.

The federal Stored Communications Act presents another potential pitfall for employers. The SCA prohibits anyone, including employers, from accessing the online account of another without the account holder’s consent. The civil and criminal penalties for violation are substantial.

Although consent is a defense to an SCA claim, some precedent suggests that employers may not condition an employee’s continued employment on the provision of passwords to private social networking sites. Pietrylo v. Hillstone Restaurant Group, Civil Case No. 06-5754 (D.N.J. Jul. 25, 2008), for example, denied summary judgment to an employer where its employee alleged that she provided private social networking site passwords to the employer because she feared an adverse employment action. The court explained that “if her consent was only given under duress, then the defendants were not ‘authorized’ under the [SCA].” Thus, even in states without specific social networking statutes, employers should be wary of intrusion into their employees’ private affairs.

Finally, assuming an employer has promulgated and followed equitable policies and concluded that an employee has committed workplace theft, the employer should be sure to impose discipline in a fair and consistent manner. The violation of a neutral employer policy—including theft—cannot be used as a pretext for discrimination or retaliation. Effective plaintiffs employment lawyers will be sure to probe whether any other employees have stolen without suffering the same consequences. Employers who mete out discipline on an even-handed basis will maximize their chances of avoiding such claims.

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The lawyers of Garrison, Levin-Epstein, Richardson, Fitzgerald & Pirrotti have been advocating for employee and civil rights throughout Connecticut for nearly 40 years.  From our offices in New Haven, we provide award-winning representation in all aspects of employment law.  We are proud to have been honored by the Connecticut Law Tribune as the 2015 Connecticut Employment Lawyers of the Year.  If you have been subjected to discrimination, harassment, retaliation, or other wrongful treatment by your employer, or if you have not been paid all of the wages you are owed (including overtime and commissions), please consider contacting us today.

 

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