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It's not surprising that, with employee theft costing U.S. retailers an estimated $16 billion a year, according to the National Retail Federation, some companies turn to investigators trained in hardball interrogation methods used by police.
But such tactics—which critics say include coercive questioning, presenting false evidence and preventing accused employees from leaving the interrogation site—can lead to charges of false confessions and result in lawsuits.
Automobile parts retailer AutoZone has been in the news over the years for a number of cases involving allegedly coerced false confessions. Recently, the New York Times published an article about lawsuits against AutoZone.
“It’s counterintuitive, but research says people will confess to things they didn’t do. Numerous studies have shown that people will say things that are not true” when they are in stressful situations, said Lonnie Soury, founder of the advocacy organization FalseConfessions.org.
“I think HR and companies don’t have a clue” about the ethical and legal ramifications of harsh interrogation techniques, Soury said, but “a lawsuit here and there and they will realize how it can happen.”
Some legal experts are critical of interrogations based on The Reid Technique, a nine-step process developed by John E. Reid and Associates that covers everything from the arrangement of the interview room to the behavior of the interrogators. Interrogators are instructed to offer a moral justification for the suspect’s wrongdoing, in order to persuade the suspect to confess. No threats or promises should be made.
John E. Reid and Associates has issued statements saying that some investigators misuse the technique and some critics misrepresent what The Reid Technique involves.
But Soury said there are cases in which an accused employee is deliberately misled: “ ‘We found this in your locker, and Steve Jones told us you put it there.’ You question yourself. You trust that the investigator is telling the truth. It’s not that hard to get somebody to confess to a crime they didn’t do if they are presented” with what seems to be solid evidence against them.
In this scenario, “the individual is given few options, and many aren’t sophisticated enough to know the ramifications” of what they say, he said. “The individual has little protection unless they’re in a union situation. The company can fire you for no reason at all. So people that need the job are going to try to cooperate” with the investigation.
Steve Albrecht, PHR, a San Diego-based management consultant, said he has been trained in The Reid Technique and that he uses variations of the model in employee interviews related to violations of policy or criminal conduct.
“What I like about The Reid Technique is its use of a set of structured questions that can help us determine who is telling the truth and who may be lying about their involvement fairly quickly,” he said.
He emphasizes one important distinction when working with HR directors and managers: “interviews with employees suspected of theft, violence, harassment, et cetera should not be called interrogations, which should only be done by the police. They are interviews in name and action, and should be called that and documented as such.
“It’s more than just semantics. In our culture, the police do interrogations. There’s the sense that the person is not able to leave. In an investigative interview, the person can walk out, can quit on the spot,” Albrecht said.
In all cases, he said, the goal for an ethical company is to have “firm, fair, consistent” policies relating to questioning employees.
The Reid Technique “is designed for criminal, not for internal or corporate, cases,” according to Richard Leo, a University of San Francisco School of Law associate professor who has testified as an expert witness in false confession cases. Instead of using outside investigators, “I think HR could do a better job when what you need is information, not a confession.”
If a company does hire an outside investigator, Soury recommended “investigating the investigators. … It’s like hiring any employee.
“Don’t assume because someone comes from a law enforcement background” that the person will conduct proper interviews, he said. “It’s not a free pass to ethical activity. It’s just an experience. … You wouldn’t want to be hiring someone who had coerced defendants.”
Albrecht said some companies hire consultants, private investigators or attorneys to conduct investigative interviews and that “third parties can be useful for their arm’s length approach.”
But having someone from the HR department conduct interviews saves money, plus “they have the context, they know the employee. Investigators may not have much background on HR law,” he explained.
If HR is conducting an internal investigation of an employee, “One thing I do is ask the employee to commit to paper what happened, and part of the investigation is to read it before I interview the employee,” Albrecht said. With that statement in hand, “you don’t have to be an expert questioner. Read it and look for gaps, look for ways the person is trying to cover up.”
Attempting to study the person’s body language during the interview can easily be misleading, he added. “A lot of people are nervous during these interviews. That’s why the commitment statement is useful. You get a much better understanding. You see red flags” before the interview starts.
The ultimate question for HR, according to Albrecht, is “what is the goal of these interviews? Is it just to determine if a theft occurred and, if so, to terminate someone, or is it to determine if a theft occurred and to contact the police?”
Many companies choose to terminate rather than prosecute. “If you go to McDonald’s and don’t like your Happy Meal and punch the manager, you get arrested. If you work there and do that, you get fired,” Albrecht said. But “there should be consequences. For criminal behavior, I believe in prosecution.
“I like consequences because it sends a deterrence message. If consequences don’t exist, then you create a cycle where the person can go to another employer” and continue the misconduct.
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