Loss Prevention Is Lying To You

I posted this about a decade ago, and apparently it still needs to be said so I'm reposting and updating it. 

So you're called into the back room. It's a tiny one with no windows and only one door. In the room is someone who identifies himself as being from Loss Prevention. He seems so nice. He tells you he's there to help you save your job. If you only tell him what he wants to hear, you can go back to work.

He's lying! Don't fall for it. Everything you say can and will be held against you. Be careful.

He asks you some questions that make it clear you're being accused of doing something wrong. Maybe it's stealing from the company. Maybe just punching in wrong. Maybe giving unauthorized discounts. Maybe a violation of some policy. He says he's trying to help you, so you tell him everything. Yes, you did use a plastic spoon from the deli and didn't pay for it. Yes, your boss gave you a candy bar and said it was going to be destroyed anyhow, so you took it and ate it. Yes, you used your employee discount to buy something for your best friend. Yes, you forgot to punch in, so you went in and wrote down your best estimate of the time you came in.

That wasn't very careful, was it? You've just confessed to doing something wrong. Maybe even a crime. But he's so nice. He tells you the only way you can save your job is to write down everything he tells you to write.

He's really lying now. Say no! Tell him that you will be glad to write your own statement in your own words, and tell him you'll provide it to him the next day. If he says you need to write what he says or be fired, you're already gone. Don't believe him for one teeny, tiny second.

He tells you to write down what you did, only the way he puts it sure makes it sound worse than it was. He conveniently leaves out how your boss told you to do it or said it was okay. He leaves out how others of, say a different race or sex, do it all the time and suffer no consequences. He has you write down that you understand you violated company policy. Maybe he even has you write down that you agree to pay the company some amount of money. Then he tells you to sign it.

Tell him to pound sand. Do not do this. If you do it, you're fired, and possibly arrested.

Let's say you believe this guy and write it all down. What's going to happen next? He grabs it, maybe leaves the room for a couple minutes, then tells you that you're fired. You're escorted out like a criminal.

If you are called into a meeting with Loss Prevention, that's a meeting where you need to be very aware that you are being accused of doing something wrong and you're probably being fired. They are not your friend. When in doubt, tell them you want to leave and speak to an attorney. Yes, they can fire you for leaving, but that's way better than admitting to something you didn't do, or admitting to a crime. You can always write up your response to the accusations calmly after you've had a chance to think straight later and send them to HR.

Never, ever admit to something you didn't do. Anyone who tells you doing so will save your job is lying to you.

Biden Moves To Curtail Noncompete Agreements, But They Aren't Illegal (Yet)

 I've had some clients get very excited about the news that President Biden's new executive order seeks to curtail noncompete agreements. And it is exciting. It just isn't a magic wand that made noncompete agreements suddenly disappear. Here's what it says about noncompetes:

Section 1. Policy.

A fair, open, and competitive marketplace has long been a cornerstone of the American economy, while excessive market concentration threatens basic economic liberties, democratic accountability, and the welfare of workers, farmers, small businesses, startups, and consumers.

The American promise of a broad and sustained prosperity depends on an open and competitive economy. For workers, a competitive marketplace creates more high-quality jobs and the economic freedom to switch jobs or negotiate a higher wage. For small businesses and farmers, it creates more choices among suppliers and major buyers, leading to more take-home income, which they can reinvest in their enterprises. For entrepreneurs, it provides space to experiment, innovate, and pursue the new ideas that have for centuries powered the American economy and improved our quality of life. And for consumers, it means more choices, better service, and lower prices.

Robust competition is critical to preserving America’s role as the world’s leading economy.Consolidation has increased the power of corporate employers, making it harder for workers to bargain for higher wages and better work conditions. Powerful companies require workers to sign non-compete agreements that restrict their ability to change jobs. And, while many occupational licenses are critical to increasing wages for workers and especially workers of color, some overly restrictive occupational licensing requirements can impede workers’ ability to find jobs and to move between States.

. . . 

Sec. 5. Further Agency Responsibilities.


(a) The heads of all agencies shall consider using their authorities to further the policies set forth in section 1 of this order, with particular attention to:

(i) the influence of any of their respective regulations, particularly any licensing regulations, on concentration and competition in the industries under their jurisdiction; and(f) To better protect workers from wage collusion, the Attorney General and the Chair of the FTC are encouraged to consider whether to revise the Antitrust Guidance for Human Resource Professionals of October 2016.

. . .

(g) To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.

As you can see, the President is asking the FTC and other agencies to look into curtailing the use of noncompete and other anti-competitive agreements and practices. But he didn't make them disappear with the stroke of a pen. First, there will be new agency regulations. Then there will be litigation, because noncompetes are generally governed by state law, which doesn't just go away. So, for now, assume that your noncompete agreement will be vigorously enforced by your employer and govern yourself accordingly. 

Yes, there are defenses to noncompete agreements. The one thing they are not allowed to be used for is preventing competition (yes, I know that's what they're called and what they're actually being used for, but this would violate antitrust laws). Employers have to have legitimate reasons other than preventing competition, like protecting trade secrets, customer goodwill, specialized training not generally available, etc. if they want to enforce noncompetes. The laws vary by state, so talk to a lawyer in your state if you have questions about a noncompete agreement.