When it comes to interviewing and interrogation, most loss-prevention specialists think about how to most effectively question an employee, read that person's behavior or use persuasive tactics to elicit an admission of guilt. What generally does not come to mind are the liability issues unique to the field. The role of the specialist is to protect company assets. Yet the monetary damages from a single lawsuit can cost a company much more than the combined thefts committed by all of the dishonest employees working for a company.

The goal of a loss-prevention investigation is to first ascertain whether an act of wrongdoing occurred. This is generally followed by interviews with employees who may be connected to the wrongdoing, which may result in the interrogation of the employee believed to be responsible. Occasionally, an investigator will make a mistake and accuse an innocent employee.


Some investigators believe they are insulated from lawsuits because there was no intent to defame an employee's character. While intent is necessary to prove slander, in some situations, when the false statement directly relates to a person's job performance, the courts will occasionally rule intent was implied. The one sure defense against a slander suit is to make certain the false statement was not made publicly.

To protect against claims of slander, the results of an interview or interrogation should only be revealed to interested parties, who are immune to the public-exposure element of slander. Certainly loss-prevention investigators qualify as interested parties. So do the employee's supervisors. However, if a false statement or derogatory remark is released to co-workers, a slander suit may result.


This claim is almost always included in the list of grounds filed against a company in a civil suit involving an interview or interrogation. A recent example is typical of this charge.

An employee was asked to meet with loss-prevention investigators at their location for an "interview," which started early in the morning and culminated nine hours later. Several loss-prevention investigators and a corporate attorney were present during the session. While the initial conversation consisted of non-accusatory questions, it soon became accusatory. During the entire nine hours, the employee was never left alone, and a female representative of the company even accompanied her when she took bathroom breaks. The employee eventually complained of feeling ill and nauseous, but the questioning continued. Around 5 p.m., the employee broke down emotionally and, while in tears, stated "I can't take this any more, I want to go home." The corporate attorney responded, "You can't leave until (company vice president) arrives to hear what you've told us."

False imprisonment is defined as "depriving a person of his/her freedom to leave an area." The allegation does not necessarily require physical restraints such as handcuffs or a locked door. The restraints can be psychological as well. Court decisions upholding false imprisonment have evaluated the number of investigators in the room, the employee's freedom of movement, being interviewed in an environment where the employee is dependent on the investigator to return home, the physical positioning of an investigator between the employee and the exit door, and interviewing an employee behind a locked door. It is generally a prima facie case of false imprisonment where the employee asks or attempts to leave the room and is prevented from doing so.

The consultation in the previous case was very straightforward. There was no question this employee was falsely imprisoned. The attorney's verbal refusal to allow the employee to leave the room would have been sufficient to support the charges. In addition, it was clear the employee was essentially under the control of investigators during her entire nine-hour ordeal--she was never left alone. Contributing factors supporting false imprisonment included the use of three investigators against a single employee and the room arrangement, where the employee was instructed to sit at the far end of a long conference table and the three investigators surrounded her, physically blocking her exit from the room.


To instill a sense of privacy, it is recommended an investigator work one-on-one with an employee. This practice helps refute claims of false imprisonment that may arise when a number of investigators "gang up" on an employee. However, there are situations when it may be advisable to have a third party in the interview room as a witness.

The most common occurrence is when a male interviews a female. Under this circumstance, a female witness may refute unwarranted claims of sexual misconduct made by the employee. To maintain a sense of privacy, position the witness behind the employee's chair and ask the witness to remain silent throughout the interview or interrogation.

In some situations, the employee will request a coworker be present during the interview. At one time, this right only applied to union employees through the 1975 Weingarten decision. In 2000, the case of Epilepsy Foundation of Northeast Ohio v. N.L.R B. extended this right to all employees. While the investigator is not required to advise an employee of this right, the employees unsolicited request for a coworker to be present during the interview must be honored. The investigator, however, can suggest conditions for this person's presence. He may ask this person sit behind and to the side of the employee's chair, and request the co-worker's interference with the interviewing process be limited to requesting clarification of questions asked of the employee or other substantive issues raised during the interview.


The liability issues resulting from improper interrogation techniques range from infliction of emotional distress to wrongful discharge. It is recommended not to interrogate employees who are pregnant or who have had recent symptoms of heart problems. It is important to anticipate the possibility of an attorney arguing that stress of the interrogation led to a miscarriage or heart attack. In addition, an interrogation that is unreasonably lengthy may be cited as causing emotional distress. Interrogations should be discontinued after four hours if there are no signs of progress. Most employee acts of wrongdoing can be resolved with an interrogation lasting considerably less than four hours.

If a confession was obtained under coercion or was compelled, it may be suppressed as evidence. Under this circumstance, the employee may file a wrongful discharge suit because the employer acted upon improperly-obtained evidence. The issue here is not necessarily whether the confession is untrustworthy (false), but whether it was essentially the product of the employee's free will (voluntary). Coercion refers to physical force or constraints, whereas compulsion relates to threats designed to overcome a person's free will. For the purpose of assessing a confession's voluntariness, the statement, "You're not leaving this room until you sign this confession" would constitute coercion. So, too, would be any actual or threatened physical force (shoving, slapping or striking) directed toward the employee. A threat of charging the employee with an exaggerated criminal offense especially when coupled with a promise that charges will not be filed if the employee confesses-is a classic example of compulsion. Most confessions are suppressed not because they are false, but because a court ruled them to be involuntary.

In addition, some confessions are nothing more than a signed statement admitting alleged guilt. Even when the employee writes out his own confession, it may be inadequate for court purposes.

Consider the following confession: "Today I told Mr. Jones from loss prevention that I stole a $2,000 deposit from the processing room last Friday. I am very sorry I did this and I will never do it again."

This employee's statement is not confessing to the theft. He is only relating what lie told the investigator. It is ambiguous as to whether he is sorry he stole the deposit or sorry he told the investigator he stole it. Does his statement mean he will never steal again or he will never admit stealing again? For a confession to stand up as evidence in a court of law, it must cover all of the elements of the offense and contain corroborative information about the employee's act of wrongdoing. The most defensible type of corroborative information to include in a confession are details about the act that were not known until the employee confessed. Examples in the preceding case would include how the money was removed from the building, where the money was spent and what lies were told to family members to cover the employee's sudden abundance of cash. The following situation is illustrative of these points:

Three off-duty police officers were hired as loss-prevention staff for a retail clothing store. The officers took an employee suspected of theft into a small room, sur- rounded the employee, and bombarded her with accusations. During their depositions, they acknowledged purposefully exposing their firearms as to "let her know we were serious." The employee maintained her innocence until one of the officers stated, "If you don't admit stealing this money, we will spread the word all over town that you are a thief, and we'll make sure you never work in this town again."

At this point, the employee broke down and agreed to sign a confession written by one of the officers that essentially said, "I stole $1,000 from the store." The employee never provided any corroborative information, nor was it ever proven she stole the money. Following her successful lawsuit for false imprisonment and wrongful discharge, the employee received considerable compensation.


The duties of a loss-prevention specialist require constant judgments involving interactions with employees. This is especially true during an interview or interrogation. One way to reduce liability exposure is to dictate proper practices in a loss prevention manual. In theory if these practices are all followed, the risks of subsequent law suits are minimized.

Writing meaningful guidelines in the area of interviewing and interrogation practices is a difficult task. If the guidelines are too restrictive, the effectiveness of investigations may be hampered because investigators lose their ability to respond to unique situations that come up during an interview or interrogation.

An example of a guideline that is too restrictive would be, "At no time shall an investigator ask accusatory questions during an interview." In the majority of cases this is a good practice. However, what if an employee makes an incriminating statement during the interview and, in an effort to corroborate the statement, the investigator asks a follow-up question. The employee, at this point, starts to retract his admission. Under this circumstance, any competent investigator would engage in accusatory statements to develop the full details of the admission.

On the other hand, if the guidelines require interpretation, they serve little value to curb behaviors that may lead to a liability suit. An example of such a guideline is, "The investigator shall not engage in any interrogation technique that is apt to cause an innocent person to confess." Two investigators may form completely different opinions about the probability of the same interrogation technique causing a false confession.

A final consideration: a loss prevention manual is subject to subpoena. An attorney can spend hours during cross-examination dissecting the manual in an attempt to get the investigator to acknowledge violating some of the guidelines. The final implication, of course, is the manual was written to ensure against liability claims and, if the investigator did not follow the manual, the company must be at fault in the present suit.


I have trained thousands of investigators over the last 20 years. Often a student will ask, "If I do such and such during an interview or interrogation, could the employee file a lawsuit?" The answer is invariably "yes." An employee who has been terminated from a company is unlikely to be forthcoming about his wrongdoing to friends and family members. Anger, embarrassment and guilt will often motivate the employee to project blame onto the company, and a lawsuit may be filed. What the loss prevention specialist can do is anticipate situations that may lead to a possible lawsuit and make certain there are no legitimate grounds to support it.

This article is not intended to offer legal advice, but to raise the awareness of some unique liability issues faced by loss-prevention specialists. If an employee asks for an attorney what should be the investigator's response? If an employee attempts to leave the interview room, can the investigator threaten him with possible disciplinary action for failing to cooperate with an internal investigation? Does telling an employee his confession will assure him a good job reference constitute an illegal promise of leniency? The answers to these and many other procedural questions depend on a number of circumstances. The best way to ensure correct decisions are made during an interview or interrogation is to receive training by professionals knowledgeable about these issues and consult with your corporate counsel.

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