Reprinted from the January 15, 2007 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

WC Claim: Employee "Injured" During Theft Investigation

Catching unknown workplace thieves often requires casting a wide investigation net. Chances are, you’re going to wind up investigating some innocent workers before determining their innocence and letting them go. It’s not usually a problem, but it could be depending on how you handle the investigation.

STOP, THIEF!

Oliver Dean and his co-workers packed up laptops and then set the boxes aside to be picked up for shipping the next day. Two days later, his manager, Charlene Foster, summoned him into her office. There, Foster was waiting with the HR manager.

“When the boxes were picked up the other day, it was discovered that some of the laptops were missing,” Foster explained.

“What?” Dean said in surprise. “I don’t know anything about the missing laptops. I assure you, I had nothing to with it.”

Foster and the HR manager questioned him more about what he did that day until they came to a conclusion.

“We interviewed the other guys on your shift, and none of your stories match up,” they told him. “I have to take drastic steps. I’m suspending you from work because of the theft of the laptops. You’re all being suspended.”

“What?” Dean repeated. He barely had time to process what was happening when they escorted him to his locker, took his security badge, and then escorted him to the parking lot, where they took the parking sticker off his car. All the while, Dean felt like other employees were looking at him like he was a convict.

STOP, MANAGER!

The following week, Foster called Dean and asked him to return to work.
The manager gave him a “decision-making leave” document. “You were on a crisis suspension,” Foster said, “because you were observed away from your work area without permission. You also failed to secure property under your control.” The document also indicated that there was no evidence that Dean had stolen anything.

Dean found that many co-workers were aware of what had happened. Some asked him about the incident; some harassed him for being a thief. Their constant pointing and whispering caused him to become nervous, panicky, and paranoid.

A psychologist diagnosed him with major depression caused by the false theft accusation. Eventually, he was deemed permanently and totally disabled from all types of employment.

Dean filed for Workers’ Compensation benefits. An appeals court allowed his claim to go to trial to determine whether he suffered an injury by accident based on whether the employer’s actions were a part of the normal work routine or an established sequence of operations.

ACTION TIPS

While the outcome of this particular case may have little bearing on your business, since Workers’ Comp is state- and situation-specific, it is a good reminder of how bad investigatory practices can create more problems than the investigation solves. Make sure you:

• Don’t act in haste. Putting an employee on crisis suspension while an investigation is being completed is a good first step. But don’t treat employees as if they are guilty in the meantime.

• Refrain from accusing employees of misdeeds without having concrete proof. Beware of even implying that an employee is guilty. The court stated that the accusation of theft was clearly implied by the fact that Foster told Dean he was being suspended because of the theft of the laptops. Not only did Dean believe he was being accused of theft, but other employees believed the same, evidenced by their harassment and calling him “thief.”

• Maintain confidentiality. This is necessary for maintaining the integrity of the investigation, and preventing unnecessary, unprofessional reactions by co-workers. Even if you are sure of the employee’s guilt, do not make accusations public.

• Stop harassment in its tracks. Harassing behavior doesn’t have to be based on a protected characteristic in order for you to put down your managerial foot.

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