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Theft — either from an employee or a cus-tomer — is a problem business owners willface sooner or later. While the laws concern-ing theft may differ in degree from state tostate, they all share a common characteristic

— stealing is illegal, and in some cases, it can be risky whenan 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 carryingaway of another person’s personal property with the specific

intent to permanently deprivethe person of the property.When an employee steals fromhis or her employer, the act isgenerally encompassed underthe state criminal code as larce-ny, theft or embezzlement.When a customer steals from abusiness, the act most com-monly found is shoplifting.Some states, such as Ohio, forexample, simply use the term“theft” to describe a range ofillegal acts.

Crimes DefinedShoplifting is generally defined as the act of taking and

removing retail merchandise from a store without paying forit and with the intention of keeping it.

Larceny. Some state laws also make illegal a range of actsthat contribute to a person’s ability to shoplift. For example,altering labels or transferring merchandise from one con-tainer to another, an employee intentionally recording mer-chandise value at less than the actual retail value and theintentional removal of a shopping cart from the storepremises are all examples of larceny.

In one case, a defendant tore off a magnetic sticker, hidthe stolen goods behind other merchandise and carried thegoods for which he had no means of paying past the cashregisters. Other convictions have resulted from concealingmerchandise within a store with the intent to later steal themerchandise. In one case, the Massachusetts Appeals Courtheld a defendant guilty of violating the shoplifting statutewhen he placed 10 cartons of cigarettes in a bag at the bot-tom of a shopping cart. Despite the fact that he did notleave the store, the defendant was found guilty because hehad no means of paying for the merchandise. In manystates, the degree of larceny and the punishments involvedwill vary with the value of the item taken. �

Whether it comes from employees or customers, theft can be hard to handle,which is why it is important to know your rights as a business owner.

By Robert Noonan

M A N A G E M E N T

Left: Shoplifters’ favorite items are those that can be easily concealed and carried off, but security measures such as videocameras (top) and watchful employees can help prevent loss. (All photos: iStockphoto.com)

Protecting Your Garden Center From

Theft

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Customers Who StealFor merchants, shoplifters

come with the territory. Theirfavorite items are those that canbe easily concealed and carried offin a coat or handbag. Oftentimes,experienced retailers will spotthem before they act. Thoseintending to shoplift usually gravi-tate toward hidden or unexposedareas of a store and do not wantassistance; their attention is typi-cally on the sales staff and not themerchandise.

State laws generally provide spe-cial rights to the merchant todetain suspected shoplifters.Overall, these laws provide thatthere must be “probable cause” forbelieving that items offered forsale unlawfully have been takenand that no search has been con-ducted. Further, it is importantthat the detention be in a reason-able manner to lead to an arrestand for a reasonable period oftime. The detention should takeplace in the establishment or inthe immediate vicinity.

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

• observe the suspect approach-ing the counter or display empty-handed;

• observe the suspect pick upand conceal the merchandise;

• know exactly where merchan-dise is concealed;

• know that the item has notbeen paid for;

• wait until the person has beengiven every reasonable opportuni-ty to pay for the item;

• politely ask the suspect for theitem for which he/she has notpaid; and

• call the police.Often a police officer may

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Embezzlement. Embezzlementis a somewhat higher form ofworkplace theft . To convict adefendant of embezzlement, theprosecutor must prove that thedefendant, while in a position oftrust or confidence, was entrusted

with the possession of personalproperty belonging to another,that the defendant took that prop-erty or hid or converted it to hisor her own use without theowner’s consent, and the defen-dant did so with the intent to

deprive the owner of the propertypermanently.

Because the law varies to a certainextent with whether the suspectedthief is either an employee or a cus-tomer, employers must be aware ofthe differences between the two.

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A police officer may arrest any person if there isprobable cause for believing he or she unlawfullytook merchandise.

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arrest, without a warrant, any per-son if there is probable cause forbelieving he or she unlawfully tookmerchandise, provided such arrestis made within a reasonable timeafter the goods are taken. An offi-cer has probable cause if the mer-chant or the merchant’s employeestates that a person has violatedthe shoplifting statute.

Employees Who StealMost laws are based on the sim-

ple principle that the employer hasthe right to control and protect hisor her own property. The ability ofthe employer to monitor the behav-ior of employees and inspect theirwork areas varies more dependingon whether the employer has creat-ed an expectation that the employ-ee’s work area is private. Here’s thesimple rule: the less the expecta-tion of privacy, the greater theemployer’s right to search.

Of critical importance toemployers is a policy, usually inthe employee handbook, thatmakes it clear to employees thatwork areas are not private. Thepolicy should state that while theemployer may provide employeeswith desks, files, vehicles, comput-ers, E-mail, voice mail, etc., theseitems are the property of theemployer to be used for companybusiness; they are not private.Better policies make it clear thatthe employer reserves the right toinspect these and other itemsincluding personal belongingsbrought into the workplace.

Employees who have beencaught engaging in illegal activity— from going into pornographicWeb sites on a company computerto taking cash at the receptiondesk — can claim that the employ-er invaded their privacy. It is aclaim that can be overcome if theemployer makes it clear the work-place is not private.

When employers catch larcenousemployees, there are several avenuesof recourse. Among them are termi-nation of employment, requiringthe employee to make restitution

voluntarily or through a suit in smallclaims or regular court, denying theperson unemployment compensa-tion benefits, denying COBRA con-tinuation for gross misconduct orpressing criminal charges.

Unlike the employee-thief

whose actions may or may not bereferred to law enforcement, thecustomer’s actions generally takethe form of criminal prosecution.

Develop A PlanAs with employee theft, the key �

M A N A G E M E N T

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Ringing merchandise up at totals less than theretail value is a crime.

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prevent theft by maintaining tightcontrols on the physical area ofthe business and individual cus-tomers. They also should betrained in detention procedures.

Exercise CareWhether employees are address-

ing the issue of the thieving employ-ee or the shoplifting customer, theproblem is the same: It is importantto strike the right balance betweendetection and enforcement and theindividual’s right to be left alone.The use of merchant or employerpowers should be exercised withcare and caution. The conditionsimposed on such powers should bestrictly complied with; misuse canlead to public ridicule, lawsuits andloss of “good will.”

On the other hand, a merchantneed not stand idly by and observemerchandise going out the frontdoor. Workplace theft is morethan just losing cash or merchan-dise; it is a recurrent drain on thecosts of running a business andcan discourage both employer andemployee alike. The law does notprotect the workplace thief; itmerely requires planning.

Robert Noonan is an attorney and founderof Robert Noonan and Associates\EmpACTSof New England, Meriden, Conn. For anyquestions, contact Meghan Boyer at mboy-er@sgcmail.com.

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to the customer-theft problem is toplace an emphasis on preventionand a contingency plan. First andforemost, it is essential that mer-chants become familiar with statelaws. While most are similar inbasic elements, they can vary in

important ways. There is no substi-tute for reviewing state laws on thematters of workplace theft.

Employees often don’t feel con-fident in the matter of dealingwith workplace theft. Training todevelop their skills and confidence

can provide a business with a bigadvantage. An alert, observant andattentive salesperson is perhapsthe best protection againstshoplifting. Employees should bemade aware of problem-customersigns. Teach them how they can

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LLeeaarrnnMMoorree !!For more information related to this article, go to www.lgrmag.com/lm.cfm/lg040604

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 bal-

ance between detec-

tion and enforcement

and the individual’s

right to be left alone.

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