HR Magazine, April 2001: The Long Arm of the Law

Vol. 46, No. 4





Law enforcement authorities may visit a worksite for many reasons. Designated managers should know what to do when the police come calling.

A police officer shows up in a company’s lobby with an arrest warrant naming an employee in connection with a traffic offense or a domestic dispute. Or a sheriff’s deputy walks in, demanding to serve a subpoena to a worker.

Would you know what to do? How about receptionists—do they have a formal plan to follow?

For many employers the answer to each question is an emphatic no, say HR professionals and workplace security consultants. Such appearances by police are more frequent than the explosive incidents of workplace violence that make headlines nationwide. But these routine visits by law enforcement officials often result in needless confusion and embarrassment for HR professionals, managers and employees.

Security consultant Philip Deming, SPHR, of Philip S. Deming & Associates in King of Prussia, Pa., witnessed such an incident a few years ago at a Pennsylvania worksite. What should have been a relatively smooth delivery of court papers turned into a shouting match “that just snowballed” out of control.

A constable was attempting to serve an employee with a court order to stay away from his estranged wife. A supervisor escorted the constable to the worker’s desk in view of dozens of his fellow employees. “The employee became very abusive toward his supervisor, yelling and screaming,” recalls Deming. “Then the receptionist panicked and called the police. It was extremely embarrassing for everybody.”

The next morning, Deming says, the company adopted written procedures—including one to handle legal document matters privately—to minimize or prevent problems in connection with visits by police, sheriff’s deputies, document servers and other agents of the legal system.

Law enforcement officials, lawyers and security consultants say every worksite should have such guidelines, and employers should not wait until after an incident such as the one Deming witnessed.

These guidelines must be written broadly enough to cover the many possible scenarios in which authorities show up at a place of business and demand to see one or more employees. But, say the experts, the policy must make clear that one particular person—such as an HR executive or other manager—is designated to handle such visits and must be contacted immediately.

This person needs to be prepared for almost anything.

“There really is no gold standard” or universally accepted ground rules for authorities entering a workplace to make an arrest or conduct other official business, says Michael Brasfield, chief of police in Fort Lauderdale, Fla., and a member of the Private Sector Liaison Committee of the International Association of Chiefs of Police.

The American criminal justice system is highly decentralized, with many local police and sheriff’s departments, not to mention state and federal law enforcement agencies. These agencies and their law enforcement officers have their own methods of handling official matters in worksites. There is no guarantee that authorities will notify an employer in advance if they intend to enter a worksite—even for a routine matter.

Security experts say HR professionals and managers should keep some basic principles in mind when dealing with authorities:

• If police come to a worksite unannounced, it’s probably important.
• Police do not want to create a scene or endanger anyone--same as you.
• Be polite and responsive. Tell the authorities you intend to cooperate, but be cognizant of your rights and the rights of employees while responding to authorities.

Planning Is the Key

These principles might seem like a tall order, but security consultants say they can be broken down into a number of commonsense steps. It all begins with planning.

“Clients call all the time saying, ‘The sheriff’s at the door wanting to serve a warrant. What do I do?’ ” says Louis Obdyke IV, an attorney with Jackson Walker in Austin, Texas, and a member of the Society for Human Resource Management’s (SHRM) Workplace Health and Safety Committee. “The company needs to look into this at a planning stage before something like this happens,” says Obdyke. “Upper management needs to sit down and think this through.”

For large worksites, consider having security consultants tour the facilities and help develop contingency plans for a variety of serious incidents, such as a fire or bomb threat. That same consultant can probably assist with a plan for responding to police showing up with an arrest warrant or with questions for an employee.

HR professionals must put the plan into writing as company policy and distribute it to all employees, security experts say. Workers—particularly receptionists—should be given training on the policy. Any time a temporary receptionist is brought in, he or she should be given a copy of the procedures and advised of the importance of adhering to them.

Some security consultants offer checklists of key steps to be taken when law enforcement representatives show up. (See related article, When the Police Come Calling.)

“Courtesy and dispatch are essential” for the first contact in the worksite, says Raymond Parker, SPHR, the CEO of PHRST & Co., a Miami-based security consulting firm. That will help the receptionist or other front-line worker assess the seriousness of the situation.

“You are certainly best served to find out quickly what the purpose of the visit is,” says Parker. If the officers are in plain clothes rather than in uniform, it might be appropriate to ask them for identification. “In a plainclothes situation, an officer should not be offended” by such a request, says Brasfield.

However, if authorities enter with guns drawn and say there’s an immediate threat—such as a bomb threat or a report of an armed employee—getting identification data can wait, security experts note.

Perhaps the most crucial step is to locate the worksite manager who is designated to deal with the police. If he or she is not available, a deputy or other designee who can meet with the officers within five

minutes of their arrival must be alerted. The HR, general counsel or security office may serve as a backup, depending on the organization’s plan.

If police ask the receptionist to tell them where a particular employee can be found or seek other specific information, the receptionist should say that the manager who is on the way will be happy to answer such inquiries—rather than give out inaccurate or privileged information, consultants say.

However, in the unlikely case that the officers declare that they do not intend to wait for a management representative to arrive before going into a building to arrest someone, “your front desk person should not try to stop the police,” says Tom Seamon, CEO of TrainLogic Inc., a security education firm in Blue Bell, Pa. “Even if the officers are wrong, it can be sorted out later.”

It’s far more likely that officials will cooperate with worksite managers, say experts. “The authorities can be extremely helpful,” says Parker. “They do know what to do. Work with them.”

Avoid Major Disruption

If the designated manager meets with law enforcement authorities and learns that they intend to escort an employee out of the building, the manager’s next task is to try to work with the officers to arrange for the least disruptive method to accomplish the task.

“You don’t want to see the police march in to make an arrest in front of other employees,” says Deming, a former federal law enforcement agent and another member of the SHRM Workplace Health and Safety Committee. “You want to try to reach an arrangement.”

Typically, that means telling the target employee’s supervisor to escort the worker to a location, such as a conference room, that is out of other employees’ view and where an altercation is unlikely. The supervisor should inform the worker of the situation and tell him or her that management is legally bound to cooperate with the authorities.

The goal, says Deming, is “to make sure that you control the situation as much as you can. Tell [the authorities] that you have 100 employees in the building” and that it would be a good idea not to be in a position where some of them might attempt to shield the targeted worker.

However it is handled, “don’t let it drag out,” warns Parker. It’s in the best interests of the company and the police that “it should all happen within 10 minutes” of the officers’ arrival.

The Paper Chase

If authorities display a search warrant, the same principles generally apply, say security and law enforcement professionals: Have a key management contact person and work with officials to help them do their job with minimal disruption.

But if a sheriff’s deputy or privately employed process server is attempting to serve a subpoena on company property, you might have the right to ask that person to leave without accomplishing their goal, say the experts.

“These issues are really grounded in state law,” says Michael O’Brien, an attorney with Jones Waldo in Salt Lake City and a member of SHRM’s Legislative Action Committee.

For example, suppose a process server has a lawsuit naming an employee in a matter unconnected to the workplace. The receptionist can contact management to confirm its policy and tell the server that he or she cannot come into the worksite “because it’s private property,” says O’Brien.

The process server would still be able to serve such papers at the employee’s home or in a public setting, O’Brien adds.

However, if a process server has a lawsuit naming the organization, that’s a different matter, notes J. Jonathan Schraub, an attorney with Schraub & Co. in McLean, Va. A major concern with a document such as this is that it might be left with a receptionist and not be recognized as something that must go to legal counsel immediately.

If it’s a lawsuit against the company and a receptionist signs for it and tosses it in with slow-moving in-house mail, says Schraub, a default judgment could be entered in court against the organization before its legal team even knows about it.

If an employee has secured a judicial restraining order barring an individual from coming within a particular distance of him or her, management might want to get the details of the order and post a photograph of the person who is required to stay away from the employee, says TrainLogic’s Seamon.

Regardless of the situation, “be certain that the function of dealing with the process server is centralized in a position in your organization,” says Schraub. “That person should get specific training with the company’s attorney” so he or she understands the various documents that might come to the worksite and how they should be handled—even though a rush referral to an in-house attorney or outside counsel might be necessary from time to time.

“Have everything channeled.”

Helping an Investigation

Occasionally, law enforcement will ask for an organization’s help in a criminal investigation involving one of its employees. If they want to see company documents, “Tell them you’re happy to cooperate but you need to see a subpoena” for them, says Obdyke of Jackson Walker.

If they have a search warrant or subpoena, “There’s nothing you can do” to prevent authorities from coming in to get the documents, says Deming. Yet “it’s still important to have someone designated” as the contact person with the authorities while they are in the building and afterward, he says.

If management learns of apparent criminal conduct by an employee “using the instruments of the company,” such as a computer or locker, “the company should be very proactive,” advises Deming.

For example, if management monitors workers’ e-mail messages and sees a message indicating that a worker plans to purchase illegal drugs, or if a manager finds drugs in an employee’s locker, the company can notify police, he says. Deming notes that it’s crucial to make it clear in employee handbooks that e-mail and lockers are monitored for the protection of the workforce.

Privacy Matters

The role of HR staff in these matters will vary depending on the size and culture of the organization. In some organizations, HR might be designated to provide information to employees about an arrest or other action by law enforcement at the worksite.

Management needs to be mindful of workers’ rights to privacy in the workplace. These rights vary from state to state, and “a lot of this is really new territory for employers,” acknowledges Deming.

Security consultants have varying advice on what, if anything, to tell co-workers after an employee is taken from a worksite by law enforcement officers.

Providing sensitive information about police action involving an employee “ought to be on a need-to-know basis,” including the worker’s supervisor but not necessarily co-workers, advises Obdyke.

“It’s good business for a manager to tell employees what happened—to an extent,” says Michael Gambrill, senior vice president of Dunbar Armored in Hunt Valley, Md., and chairman of the Law Enforcement Liaison Council of the American Society for Industrial Security.

Employers might want to release some information to prevent the rumor mill from churning out wild speculation, he notes, but “you don’t want to violate the confidentiality” of the worker. “There’s a thin line between the right to know and the right to privacy.”

For example, suppose an employee is taken into custody on the assembly line and dragged away by police. Authorities later learn that it’s a case of mistaken identity. The employee could sue the organization for defamation of character if managers helped the police arrest the worker or said too much to other employees about the allegations—even though the authorities were to blame for taking away the wrong person, says Parker.

“The mere fact that a law enforcement representative wants to meet with an employee does not necessarily mean that the employee has done something wrong,” says Fort Lauderdale police chief Brasfield. “He could very well be a contact in an investigation” against others, he adds.

Dealing with the news media can be an added challenge, security consultants say. If reporters seek information from a receptionist or other employee not designated as an official organization spokesman, they should be referred to the spokesman.

Immediately after a worker has been arrested, a company spokesman might not even know if the employee has been charged with a crime or what the charge is. In that case, it’s appropriate to suggest that reporters contact law enforcement authorities for details, say security consultants.

“It’s generally prudent to develop a response but not have it say much,” says Parker. “Don’t say ‘no comment.’ Say ‘I don’t know. We’re trying to find out.’ ”

Adds Gambrill: A flat “no comment” following a police-related incident “could make it sound a lot worse” than it is.

Don’t Wait for Trouble

Along with preparing a written policy for handling visits by law enforcement officers and process servers, organizations should consider setting up an informal meeting with the local police chief or other law enforcement official to establish a relationship before trouble happens, say officials and consultants.

“A law enforcement agency should welcome that opportunity,” says Brasfield. “Have a cup of coffee; get a telephone number.” Many large police departments have a community liaison or crime prevention officer for that type of meeting.

“It’s very helpful, and it creates good will,” says Deming. “When you do have a crisis, it’s a lot easier picking up the phone and talking with someone you know. It pays dividends.”

Steve Bates is senior writer for HR Magazine.