OK to aggressively question suspected thieves—as long as your intent isn’t malicious

by on
in Hiring,Human Resources

Some employees are light-fingered, and it isn’t always easy to catch them stealing. Loss-prevention staff often presses hard when interviewing employees they suspect are pilfering. That’s appropriate, as is reporting the case to police.

As the following case shows, aggressive questioning during an initial investigation doesn’t equal malicious intent—even if the employee is prosecuted and eventually acquitted.

Recent case: Bernard Scarborough worked for Dillard’s Department Stores in the shoe department, and also held a full-time job at a bank. He was accused of letting two customers walk away with two pairs of shoes without paying. Managers checked the cash register tapes, and store security officers questioned Scarborough. He claimed they threatened him with criminal prosecution and told him he would lose his bank job if he didn’t admit to theft.

Although Scarborough professed his innocence, police were called in and he was criminally prosecuted. A jury acquitted him.

He then sued for malicious prosecution and a jury awarded him $77,000 in punitive damages. Dillard’s appealed, claiming that it could be liable for punitive damages only if it had acted with malice, or willful or wanton conduct.

The North Carolina Supreme Court determined that nothing about Dillard’s investigation and the resulting criminal prosecution met those standards. While the investigation wasn’t perfect and the criminal charges didn’t pan out, none of the employer’s actions was malicious. (Scarborough v. Dillard’s, No. 112A08, North Carolina Supreme Court, 2009)

Leave a Comment