Employers that suspect that employees have been stealing should know the rules governing their investigations--and whether an employee's confession will stick in court. The Appeals Court of Massachusetts recently reviewed some of the rules for employer investigation of suspected workplace theft.

What happened. Claire Miller, a cashier at a Home Depot store [location not stated] had $1,000 missing from her cash drawer when she finished her shift on February 23, 2003. The next day, two investigators from The Home Depot's loss prevention group asked her to leave her register and led her to a small room. There, Miller said, one of them loomed over her and the other blocked the door. They refused to allow her to call her husband or a lawyer and told her she could leave the room only after she signed a confession.

After 2 hours she finally signed it, and she was terminated. The Home Depot pressed larceny charges, and the case went to a jury. There was also evidence, however, of flaws in The Home Depot's cash accounting system and evidence of several other employees who could have been responsible for the loss. At the trial, Miller's lawyer raised the issue of the voluntariness of the confession, but the trial judge refused to conduct a separate hearing on that issue. Her confession then went before the jury as a key piece of evidence, and the jury convicted her. Miller appealed, raising the issue of voluntariness.

What the court said. If the evidence before a trial judge raises a substantial question about the voluntariness of an employee's confession, that judge must hold a hearing on its admissibility outside the presence of the jury. This requirement applies regardless of whether the confession was obtained by police or, as here, by private investigators.

In this case the appellate court was troubled by what it called "oppressive interrogation techniques," including isolation and coercion, and stated that the question of whether Miller's confession was "of free will and rational intellect" was very much a live issue. At the evidentiary hearing that should have been held, the voluntariness of the confession should have been measured by "whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act."  The court reversed the judgment and set aside the verdict. Commonwealth v. Miller, Appeals Court of Massachusetts, No. 05-P-1252 (5/4/07).

Point to remember: In questioning employees about possible workplace crime, employers should know that according to the Massachusetts Supreme Court, the admissibility of any confession depends on (1) the time and conditions under which the questioning took place, (2) the content and form of the questions, and (3) the physical and mental condition of the employee during the questioning.