March 2006
Protecting Your Garden Center From Theft By Robert Noonan

Theft — either from an employee or a customer — is a problem business owners will face sooner or later. While the laws concerning theft may differ in degree from state to state, they all share a common characteristic — stealing is illegal, and in some cases, it can be risky when an owner acts on the suspicion of theft.

Larceny is usually the term used to denote the act of theft: The basic elements include the unlawful taking and carrying away of another person’s personal property with the specific intent to permanently deprive the person of the property. When an employee steals from his or her employer, the act is generally encompassed under the state criminal code as larceny, theft or embezzlement. When a customer steals from a business, the act most commonly found is shoplifting. Some states, such as Ohio, for example, simply use the term “theft” to describe a range of illegal acts.

Crimes Defined

Shoplifting is generally defined as the act of taking and removing retail merchandise from a store without paying for it and with the intention of keeping it.

Larceny. Some state laws also make illegal a range of acts that contribute to a person’s ability to shoplift. For example, altering labels or transferring merchandise from one container to another, an employee intentionally recording merchandise value at less than the actual retail value and the intentional removal of a shopping cart from the store premises are all examples of larceny.

In one case, a defendant tore off a magnetic sticker, hid the stolen goods behind other merchandise and carried the goods for which he had no means of paying past the cash registers. Other convictions have resulted from concealing merchandise within a store with the intent to later steal the merchandise. In one case, the Massachusetts Appeals Court held a defendant guilty of violating the shoplifting statute when he placed 10 cartons of cigarettes in a bag at the bottom of a shopping cart. Despite the fact that he did not leave the store, the defendant was found guilty because he had no means of paying for the merchandise. In many states, the degree of larceny and the punishments involved will vary with the value of the item taken.

Embezzlement. Embezzlement is a somewhat higher form of workplace theft. To convict a defendant of embezzlement, the prosecutor must prove that the defendant, while in a position of trust or confidence, was entrusted with the possession of personal property belonging to another, that the defendant took that property or hid or converted it to his or her own use without the owner’s consent, and the defendant did so with the intent to deprive the owner of the property permanently.

Because the law varies to a certain extent with whether the suspected thief is either an employee or a customer, employers must be aware of the differences between the two.

Customers Who Steal

For merchants, shoplifters come with the territory. Their favorite items are those that can be easily concealed and carried off in a coat or handbag. Oftentimes, experienced retailers will spot them before they act. Those intending to shoplift usually gravitate toward hidden or unexposed areas of a store and do not want assistance; their attention is typically on the sales staff and not the merchandise.

State laws generally provide special rights to the merchant to detain suspected shoplifters. Overall, these laws provide that there must be “probable cause” for believing that items offered for sale unlawfully have been taken and that no search has been conducted. Further, it is important that the detention be in a reasonable manner to lead to an arrest and for a reasonable period of time. The detention should take place in the establishment or in the immediate vicinity.

As a practical matter, before stopping a suspect for shoplifting, the merchant should:

  • observe the suspect approaching the counter or display empty-handed;
  • observe the suspect pick up and conceal the merchandise;
  • know exactly where merchandise is concealed;
  • know that the item has not been paid for;
  • wait until the person has been given every reasonable opportunity to pay for the item;
  • politely ask the suspect for the item for which he/she has not paid; and
  • call the police.

Often a police officer may arrest, without a warrant, any person if there is probable cause for believing he or she unlawfully took merchandise, provided such arrest is made within a reasonable time after the goods are taken. An officer has probable cause if the merchant or the merchant’s employee states that a person has violated the shoplifting statute.

Employees Who Steal

Most laws are based on the simple principle that the employer has the right to control and protect his or her own property. The ability of the employer to monitor the behavior of employees and inspect their work areas varies more depending on whether the employer has created an expectation that the employee’s work area is private. Here’s the simple rule: the less the expectation of privacy, the greater the employer’s right to search.

Of critical importance to employers is a policy, usually in the employee handbook, that makes it clear to employees that work areas are not private. The policy should state that while the employer may provide employees with desks, files, vehicles, computers, E-mail, voice mail, etc., these items are the property of the employer to be used for company business; they are not private. Better policies make it clear that the employer reserves the right to inspect these and other items including personal belongings brought into the workplace.

Employees who have been caught engaging in illegal activity — from going into pornographic Web sites on a company computer to taking cash at the reception desk — can claim that the employer invaded their privacy. It is a claim that can be overcome if the employer makes it clear the workplace is not private.

When employers catch larcenous employees, there are several avenues of recourse. Among them are termination of employment, requiring the employee to make restitution voluntarily or through a suit in small claims or regular court, denying the person unemployment compensation benefits, denying COBRA continuation for gross misconduct or pressing criminal charges.

Unlike the employee-thief whose actions may or may not be referred to law enforcement, the customer’s actions generally take the form of criminal prosecution.

Develop A Plan

As with employee theft, the key Á to the customer-theft problem is to place an emphasis on prevention and a contingency plan. First and foremost, it is essential that merchants become familiar with state laws. While most are similar in basic elements, they can vary in important ways. There is no substitute for reviewing state laws on the matters of workplace theft.

Employees often don’t feel confident in the matter of dealing with workplace theft. Training to develop their skills and confidence can provide a business with a big advantage. An alert, observant and attentive salesperson is perhaps the best protection against shoplifting. Employees should be made aware of problem-customer signs. Teach them how they can prevent theft by maintaining tight controls on the physical area of the business and individual customers. They also should be trained in detention procedures.

Exercise Care

Whether employees are addressing the issue of the thieving employee or the shoplifting customer, the problem is the same: It is important to strike the right balance between detection and enforcement and the individual’s right to be left alone. The use of merchant or employer powers should be exercised with care and caution. The conditions imposed on such powers should be strictly complied with; misuse can lead to public ridicule, lawsuits and loss of “good will.”

On the other hand, a merchant need not stand idly by and observe merchandise going out the front door. Workplace theft is more than just losing cash or merchandise; it is a recurrent drain on the costs of running a business and can discourage both employer and employee alike. The law does not protect the workplace thief; it merely requires planning.



Robert Noonan

Robert Noonan is an attorney and founder of Robert Noonan and AssociatesEmpACTS of New England, Meriden, Conn. For any questions, contact Meghan Boyer at mboyer@sgcmail.com.





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