Any retail business with a high volume of customer contacts (e.g. concert halls and department stores) struggles to meet customer safety and loss-prevention objectives without imposing security that is so intrusive that it harms the customer experience.
Much of the litigation risk posed by retail security is rooted in the need for subjective analysis and discretionary intervention (e.g. who to watch, and when and how to intervene). Your employees confront these questions every day, and even honest mistakes can lead a perception of discrimination. The resulting lawsuit can be costly and do serious harm to your brand.
The challenge for inside counsel is to develop security programs that balance these competing interests. The easy answer is to remove all subjectivity and discretion from retail security practices, but that is a poor solution.
Keeping in mind that applicable laws vary state-by-state and there is no “one-size-fits-all” solution, here are some suggestions:
Your policies are the core of your security program, but they also will be the first place a plaintiff’s attorney looks for evidence that your company targets specific groups for disparate treatment or acquiesces in bad behavior by employees. Thus, your security policies should articulate the purpose of the program, explain how it will be implemented and set minimum and maximum parameters for employee conduct.
Policies that are developed by outside experts based on best practices and industry standards are more likely to withstand scrutiny than are programs developed by company insiders who lack requisite expertise. Regardless, they must periodically be reviewed to ensure that they remain consistent with prevailing law, evolving best practices and changed retail conditions.
It is equally important that your policies are adhered to in practice and consistently enforced. Surprise audits can be effective tools to ensure compliance, identify gaps in training, weed out problem employees and defend against charges of acquiescence.
The best programs are developed and implemented by professional trainers, and they involve scenario-based training, role-playing exercises and specific instruction on profiling and the bounds of appropriate physical contact. Initial and refresher training should be provided to all staff who interact with customers, and there should be defined standards for graduation. Like policies, training programs must periodically be reviewed and updated.
The constitution of your staff can be a source of litigation risk. A staff that is homogenous although the community is diverse may suggest inappropriate hiring and promotion practices, and a plaintiff’s attorney will use any disparity to argue that security practices are tainted by discrimination. Take care to ensure that hiring and promotion practices are non-discriminatory and result in a diverse workplace.
Surveillance, apprehension & detention
There is a subjective element to retail security that cannot be avoided, though it invites litigation risk.
Consider carefully the criteria that will be used to determine whether to monitor a particular person or location, and whether to focus surveillance on particular days or times or at particular events. Where possible, deploy security resources based on objective data rather than hunches, and initiate surveillance and detention based on non-discriminatory criteria and uninterrupted observation. Apprehensions should be affected onsite, but away from large crowds, and the use of force should be minimized.
How a person is treated when he interacts with your employees will influence what he does next. Thus, detention processing should be “humane” and efficient, while still being safe and secure. Particular care should be given to the treatment of juveniles. Where bag and body searches are absolutely necessary, they should be “same sex” and witnessed. And when customers complain about mistreatment, take their complaints seriously.
Adequate record keeping is a powerful tool to reduce litigation risk. Generally, staff should be required to make a contemporaneous written record of any customer detention, including a narrative description of the process by which they came to observe, interact with and detain the customer. These reports should be stored in a central location, and be reviewed by supervisors for sufficiency and identification of possible employee misconduct.
There is no silver bullet to ward off frivolous litigation, but careful attention to the preparation and implementation of your retail security program can be an effective way to reduce your litigation risk.