Here is the scenario: There’s a call to the front desk. A guest returned to her room and noticed personal items missing. What do you do?
There are three immediate concerns, according to Bryant McFall, managing shareholder of Ogletree Deakins’ Dallas office. First, take care of the guest. Make sure she is OK and find out the basics: how long was she gone, what is missing, where were the missing items located, etc. Second, file a police report. Third, conduct an internal investigation of what happened.
“The difficult part is investigating among employees,” McFall said. The first step is to determine who had access to the room during that window of time. “Then interrogate the locks. This will tell you everything you need to know.”
But dealing with an internal investigation can be touchy. Marc Katz, partner atAndrews Kurth LLP, said it all starts with an official policy and then staying consistent with any and all situations. Have employees sign a form when hired and then adhere to the policies within the form. But in terms of questioning and possibly firing an employee, “there’s no legal constraints on what an employer is allowed to do,” Katz said.
“You can’t discriminate, but the breadth of it is up to the employer’s discretion to make reasonable calculations of who might have been involved and who might have information. The only way to run into problems is [if you] treat employees differently” during that process, he said.
Other than discrimination concerns, Katz said employers should be aware of local statues. For example, in California, employers are not allowed to question employees about their off-duty conduct. Also, be aware of legislation like the Employee Polygraph Protection Act, “which makes it difficult to effectively use polygraphs,” according to McFall.
Employers can’t administer polygraph tests unless there is a theft investigation.
“But it’s a hollow exception because essentially you can use it, but you have to go through a lot of hoops,” McFall said. “And say you do those things. The law does not allow you to take action based on the polygraph solely. You need to have corroborating evidence.”
Polygraph law is so tricky most employers don’t try it, opting to run the investigation with a company-wide, consistent policy.
If an employee is terminated on suspicion of theft, McFall said to write that in the file. “Don’t mark on the record they stole guest property,” he said. “Mark, ‘fired for suspicion of theft.’ We’ve had lawsuits where some people have prosecuted defamation claims.”
But back to the guest: If there is no sign of negligence, if the hotel couldn’t have foreseen or reasonably prevented the theft, there is no legal obligation to reimburse the guest, according to both Katz and McFall. But it is good policy to check with your insurance company to see if the theft is covered, which is a big reason to file a police report.