Negligent Hiring

In the case of hiring LP personnel, knowing their duties will involve confronting customers reasonably believed to be shoplifting, is it foreseeable that an LP agent with a history of aggressive behavior may injure a customer? The answer must be “yes.” Is it then also incumbent upon the employer to determine if the prospective agent has a history of violence or aggressive behavior? Again, the answer must be “yes.” If the employer’s ordinary and customary pre-employment screening does not address the issue of aggressiveness, has the employer who hires an LP agent without checking this aspect of the applicant’s behavior then exercised ordinary care? The answer here must be “no.” Hence, the employer is negligent, and if this agent should injure someone by the use of excessive force while within the course and scope of his or her employment, and his or her employer is sued as a result thereof, the employer would be vulnerable to civil damages.

The duty of a store owner (as outlined previously) applies equally to the other torts of training, supervision, and retention, which we will now discuss.

Negligent Training

Is it foreseeable that an untrained LP agent may, out of ignorance, injure a customer by reason of a false detention, an illegal search, or perhaps the improper application of handcuffs? Of course! If the employer fails to provide adequate training, as well as assure the agent understood the training provided, has the employer met his or her obligation with respect to duty to his or her customers? No.

Here’s an example. Company A requires LP agents to make detentions and use force if necessary to effect such detentions. The employer’s failure to provide adequate training in the use of force would or could be, under the circumstances, unreasonable and negligent, unless the employer assures himself or herself that such training has previously been given to the applicant and the applicant is conversant with it and it comports to the employer’s desires, policies, and procedures. Again, if the agent’s ignorance of correct procedures resulting from a lack of training results in an injury when engaged in his or her duties, the employer may be in jeopardy.

Negligent Supervision

Let’s assume an applicant has been carefully screened, and his background is impeccable. Let’s also assume he has received adequate training and demonstrated his understanding and retention of that material. Let’s also assume that 1 year after his hire, this agent, while making a shoplifting apprehension, detains an old and valuable customer and, in the process of the apprehension, forces her to the ground and twists her knee in the process. This should never have happened because the employer’s policies, which the agent knew, prohibited any physical contact with the shoplifting suspect other than a “holding force.” Additionally, the employer required a full report anytime a customer was injured in any way in the process of an apprehension.

We have established that this agent was properly hired and trained, so what went wrong? When the customer’s attorney called the store to complain, he asserted that not only was his client injured, but that she did not possess any stolen merchandise when she was apprehended. He wanted to inquire what the store intended to do about this affront and injury to his client. If not satisfied with the store’s response, he stated his intention to file a lawsuit. At this point, the store was ignorant of the incident, since a review of the apprehension reports on file by this agent disclosed no report on this incident.

Management immediately began an inquiry into the alleged incident and learned that this agent has not been visited by an LP supervisor within the past 6 months, although he did receive a phone call from his supervisor 2 months ago wondering why his shoplifting apprehensions had been declining.

When contacted about the incident, the agent at first denied any knowledge of it. Upon further investigation, it was apparent the incident occurred as described by the attorney, and the agent finally admitted he made a “bad stop” but denied any physical injury to the suspect. He stated he failed to report the stop because he didn’t want a bad stop on his record.

A case of negligent supervision could be made under these circumstances. What was negligent about his supervision, or lack of it?

When an agent’s productivity declines, there is always some reason. It may be the result of the agent’s “goofing off,” improper scheduling to match peak customer hours, the agent’s loss of confidence in his or her ability to spot shoplifters, lack of support from sales associates in reporting suspicious customer behavior, etc. The point is there is a reason—or several reasons. The only way to establish those reasons and return the agent to his or her potential effectiveness is through a personal visit and discussion with the supervisor. A phone call asking about a decline in productivity “doesn’t cut it.” Further, an agent who hasn’t seen his or her supervisor in 6 months is bound to feel somewhat abandoned and “left out of the loop.” Agents experiencing a decline in any kind of productivity for any period of time many become concerned about their job longevity and start taking “shortcuts” to obtain apprehensions. If the “productivity” happens to be detentions, the shortcuts usually involve skipping one or more of the six steps. Invariably, this practice will result in a bad stop sooner or later, and most likely sooner rather than later.

Long-range supervision is, in our view, not a substitute for personal face-to-face conversations with agents, at which time their concerns, as well as those of their employer, can be discussed and resolved. There’s an management adage that states, “Employees don’t do what you expect; they do what you inspect.” Simply reminding the agent to be more careful and not let the incident be repeated doesn’t qualify as sufficient discipline in such a serious matter.

Should the store’s actions not satisfy the victim’s attorney, it is almost certain one of the allegations in the lawsuit will be negligent supervision, and in our view, the chances of the jury’s finding for the plaintiff are quite high.

Negligent Retention

In the scenario just cited, it was noted that there was no apprehension report submitted by the erring agent covering this incident. Such an omission was in direct violation of his employer’s rules and at least led to the inference the agent knew his conduct during the apprehension was improper. Indeed, the agent’s violation of rules was deliberate and was further compounded by his initial denial (lying) it ever happened. This is egregious misconduct.

Yet the agent was neither given any written warning (such an offense should result in his termination) or other discipline. His supervisor recalls telling the agent to “be more careful and not let this happen again.” That rather innocuous remark, however, does not qualify as a warning sufficient to alert the agent to the seriousness of his offense.

Unfortunately, some 15 weeks after the agent was told “to be more careful and not let this happen again,” it did. Another customer was stopped and found not to be in possession of any stolen merchandise. In the lawsuit which followed, negligent retention was claimed. Why? The allegation was that the employer was negligent in retaining an agent who not only broke the rules regarding following the six steps, but also opted not to file the required reports on the incident. Was it foreseeable this would happen again? Perhaps. Did the employer sufficiently impress upon the agent the seriousness of the first incident? No! Did the employer fail to use ordinary or reasonable care by retaining this agent on the payroll under the totality of the circumstances? Yes, the employer failed! Was this employer vulnerable to a jury finding he was negligent. More than likely yes.

When a retailer employs LP personnel, extreme care must be taken when hiring, training, supervising, and making decisions regarding retention after their involvement in an untoward incident. To do otherwise invites adverse verdicts when sued for negligence in connection with LP activities.

The Store Night Depository System

Night depositories are cubicles constructed on the inside of a store; one side of the cubical is the exterior wall of the store with a small exterior door. The size of the door would allow a person to enter, remove, or leave chests containing business documents and packages. The exterior of the door has no hardware, only a keyway in which a key is inserted to open the door. On the opposite side of the cubical is another small door which opens into the interior of the store (often in the receiving and shipping area), and that door can only be opened with a key from the inside of the store. The exterior door is not alarmed, but the interior door is alarmed and part of the store’s perimeter alarm system.

This physical configuration allows a company van to visit stores at night, and the driver can open the depository door with a key and remove contents that will be transported to the DC or corporate headquarters, as well as deposit (leave) any chest or parcel meant for that store. Clearly, this is a quick and expeditious expansion of the inter-store transfer system, with multicopy paperwork covering both items left in the depository as well as those taken by the driver. That driver cannot continue on through the cubical because it is alarmed, just like any other door.

The Security Inspection

The loss prevention program should include physical security inspections of every store to ensure compliance with required security-related systems and procedures. On one such inspection of a relatively new store, the agent, upon inspecting the night depository, discovered the interior door was alarmed but the switch that would activate the alarm if that door was opened was compromised. This switch was the plunger-type and was compromised with a toothpick; i.e., the plunger was recessed and shimmied shut by the wedging of a toothpick, so when the door was open, the plunger could not pop out and activate the alarm. Clearly, someone who had, legitimately or illegitimately, obtained keys to the outer door could, in collusion with the inside employee, enter and leave the store at night without activating the perimeter alarm system.

Within hours, the plunger switch was replaced with a switch that was tamper-proof, providing integrity to the system. Various employees were present when this discovery was made and corrected, and the risk disappeared.