Katherine Van Wezel Stone, the Arjay and Frances Fearing Miller Distinguished Professor of Law at UCLA School of Law, is author of “From Widgets to Digits: Employment Regulation for the Changing Workplace.” This op-ed appeared Feb. 2 in the National Law Journal.
The recent incident in Pasadena, California, in which Graham Gentles was accused by his employer, Target Corp., of theft, is a tragic manifestation of a troubling trend in employment relations.
On July 15, 22-year-old Gentles was arrested as he entered the Pasadena Target store to report for his job as a cashier. At the store entrance, he was met by police and two company security guards, according to lawsuit filed last week by his mother against Target. He was handcuffed and paraded through the store in front of all the other employees before being taken to the police station for booking, the complaint alleges. It was later learned that he had been accused of theft by a co-worker with whom he’d had a dispute in a bar while off duty some months before. He was released the same day, and no charges were filed. However, Gentles, who had Asperger’s syndrome, was so traumatized by the ordeal that he committed suicide three days later, his mother asserts.
The wrongful-death lawsuit brought by Virginia Gentles alleges that Target has a company policy called the “Walk of Shame” to “purposefully cause shame, embarrassment and emotional distress to any Target employee who is suspected of stealing from Target.” It further alleges that Target has given similar treatment on numerous occasions to other employees it suspected of stealing.
Although we don’t know all the facts in this case, the incident reflects a trend of employers using hardball inquisitorial practices to control employee theft.
Firms have experienced alarming rates of employee theft and have instituted intrusive and often harsh interrogation techniques to weed it out, as The New York Times reported in March 2014, “When Employees Confess, Sometimes Falsely.” At the same time, employers are increasingly monitoring their employees' private lives, using advanced technology to do so. A device called a “spy stick,” marketed widely to consumers, offers to enable employers to get information from employees’ cellphones including emails and text messages, even those that have been deleted.
These practices reflect the deterioration of trust in the workplace. In the past, employers valued loyalty and long-term attachment from employees, particularly at large manufacturing firms, insurance companies and retail chains. However, in recent years employers have come to value flexibility instead. Today they want the freedom to increase or shrink the size of the workforce and alter hours, compensation and benefit packages. They want to alter job assignments and change their skill mixes to adapt to a fast-changing and highly competitive global product market.
Employers have increased their use of temporary workers, shifted to project work that utilizes independent contractors instead of employees, and repudiated any implicit or explicit promises of long-term jobs to their regular employees. In some retail and service sectors, employers have also instituted just-in-time scheduling policies, which require employees to come to work with almost no notice. Employers have promoted a culture of change rather than one of permanence.
Part of the rationale for new flexible practices is that they free employees from monotonous and routine jobs and foster more creativity. At the same time, employers say it allows them to harness and develop employee knowledge and talent. Employees who are not chained to narrowly defined, dead-end jobs can be more creative and utilize their knowledge and ideas on behalf of the employer.
Despite the potential benefits, in the absence of long-term attachment, neither employers nor employees have a lot of loyalty to each other, which creates distrust. One discernible consequence is the enormous increase in litigation over postemployment restraints. Employers fear that employees who possess valuable knowledge may depart at any time and go work for a competitor. Hence, they increasingly use covenants not to compete or mutual no-raid pacts to keep that from happening.
Another consequence involves both actual and imagined employee theft, at issue in the Gentles case. In 2013, a survey by the National Retail Federation found a rapidly rising incidence of employee theft over the past 10 years, including an increase of 5.5 percent between 2012 and 2013.
Companies today are quicker to be suspicious — and more adamant about catching and punishing petty pilfering — than they were in the past. The Internet is filled with first-hand stories by individuals who have been fired from large chain stores for such minor “theft” as picking up a stray quarter that had fallen on the floor or taking a stuffed animal out of a trash bin to give to an employee’s daughter.
In the past, most large companies had unions that handled allegations of theft. The dismantling of unions is not an accident but another manifestation of the changing nature of work, for unions are seen as impediments to the very flexibility that employers today so value. Without unions, employers have wide rein to be harsh and arbitrary. And without long-term attachment and commitment to their employees, they are more suspicious than ever.
In Graham Gentles’ case, there was no evidence of theft. Nonetheless, he paid an enormous price for Target’s hardball response to its suspicion. The irony is that the same management philosophy that urges firms to value employees’ knowledge and creativity also breeds more distrust than did the work practices of the previous era.
