According to a lawsuit filed on January 22 in Los Angeles Superior Court, a young Target employee who had Asperger’s Syndrome (a high-functioning form of autism) committed suicide three days after being paraded through the store in handcuffs and taken away in a police car, allegedly as part of a Target disciplinary policy known as the “walk of shame.” The lawsuit, filed by the employee’s mother, alleges that the “walk of shame” proximately caused the employee to commit suicide, and accuses Target of false imprisonment, intentional infliction of emotional distress, negligence, and wrongful death.
The complaint states that the employee arrived early for work one day and was met at the entrance by store security and police. At the direction of two store managers, the police officers grabbed him, emptied his pockets, pulled off his hat, handcuffed him, and then led him into the store, past coworkers and store customers, to be questioned. After being questioned, he was taken to a police car and to the police department. The police later released him and he was not charged with any crime. According to the complaint, the employee was “shocked, confused and mortified,” had no idea why he was being arrested, and told his mother that it was “the worst day of his life.” He committed suicide three days later.
The complaint alleges that the treatment is a disciplinary measure employed as part of Target policy that is called the “walk of shame”, designed to “cause shame, embarrassment and emotional distress”, and that it has happened numerous times to employees suspected of stealing. The complaint alleges that the employee was subjected to the walk of shame not for stealing, but because of an argument with another coworker at a bar outside of work hours several months earlier. Target denies having a “walk of shame” policy, and said in a statement that the allegations in the lawsuit of a Target policy or practice are not true, but would not comment further.
The case serves a reminder to employers to review policies and procedures for dealing with employee misconduct, including theft, and to ensure that supervisory personnel are properly educated on and consistently apply those policies and procedures.
An effective disciplinary policy consists of several components: (1) establishing a fair system of work rules and expected standards of conduct, and making sure employees are aware of them, (2) consistently enforcing those rules, and (3) documenting the rules and the steps taken to enforce them. Where misconduct is suspected, the first step is to conduct an investigation. If an employee engages in behavior so egregious that immediate action is necessary, best practice is generally to inform the employee of the suspected behavior and let them know that they are suspended, effective immediately, while the company investigates. Care should be taken at all times to avoid embarrassing the employee in front of others. Human Resources should be informed of the situation immediately; consider involving legal counsel from the outset, particularly in cases involving serious misconduct.
The investigation should be done discreetly and confidentially, and should be well-documented. The employee should be informed that cooperation with the investigation is mandatory and failure to cooperate can subject them to termination. The company should interview the employee as part of the investigation, however, the employee should, at all times, be free to leave of his or her own accord. Never threaten the employee or in any way impede the employee’s ability to leave. During the interview, do not accuse the employee of theft. Explain the reasons for the investigation, and allow the employee to explain his or her behavior. Consider asking the employee to confirm his or her statements in writing.
If the decision is ultimately made to terminate the employee, care should be taken at the termination meeting as to the reason given for the termination. In some jurisdictions, accusing someone of a crime is per se defamatory and can result in the employer being practically forced to prove that the employee in fact committed that crime. Use language expressing a lack of trust in the employee, i.e., loss of confidence, or failure to follow store policies, if applicable. The reason for the termination should not be broadcast to other employees. Finally, make sure that the termination meeting is documented in writing.
Where theft or other illegal conduct is suspected, the decision must be made as to whether or not to involve the local police department. Many police departments will not do more than write a report for theft of less than a few hundred dollars of merchandise, so it may not be worth it to involve them. If you do decide to call the police, ensure that no one accuses any particular person of committing a crime—allow the police to conduct their own investigation. Pointing a finger, even where the evidence points to only one employee, puts your company at risk for a claim of malicious prosecution. Also, keep in mind that if the police do decide to prosecute, the company will have to cooperate with the investigation and prosecution, which can come at a cost in the form of lost man-hours.