Author Archives: Walter Palmer

UK Bribery Act Guidance Issued

On March 30th, the Ministry of Justice announced 1 July 2011 as the date for the new anti-bribery act to be fully instituted.  Additionally, they issued updated guidance on the act that was generally perceived to soften the anticipated severity of the act by clarifying such things as whether organisations listed on the UK stock exchange but that don’t do business there fall under jurisdiction, clarifying that corporate hospitality is still allowed, and also suggesting that a company’s suppliers are unlikely to be viewed as acting on the company’s behalf.

The official guidance and a Quick Start guide can be found HERE.

UK Civil Recovery Practices Supported in Parliament

In past posts, I have noted the criticism that civil recovery has been receiving in some of the mainstream media in the United Kingdom.  However, just as has been the case in the U.S., the law is very clear on the statutory rights that retailers hold in using this process to help offset the costs of retail crime.  Recently, The Parliamentary Under-Secretary of State for Justice, Mr Jonathan Djanogly, gave strong support for civil recovery on the floor of the House of Commons.

“Civil recovery is the legal means by which anyone who has suffered a financial loss due to the wrongful actions of someone else can seek appropriate compensation under civil law. Civil recovery schemes are used by many high-street retailers to deter shoplifting and recover from shoplifters the management, administration, security and surveillance costs incurred in dealing with the case, including the costs of the civil recovery action itself. That ambition is both understandable and justifiable. Shoplifting is not a victimless crime. Businesses employ civil recovery agents to recover through the civil courts often relatively low-value losses arising from, for example, shoplifting or employee theft. The alternative would be criminal proceedings rather than a suit, with the likelihood of a criminal record for the person being prosecuted.”

“Retailers have a clear legal right to recover the costs of goods that they lose as a result of crime. The Government recognise the appropriate and proportionate use of civil recovery as one option available to retailers for dealing with low-level criminal activity that also amounts to a civil wrong. We believe that civil recovery, when used proportionately, provides an effective response to low-value and often opportunistic crime that often involves teenagers and other vulnerable people.”

“Let me be clear that the Government are entirely satisfied that retailers have a legal right to recover the value of any goods lost or destroyed as a result of an individual’s actions. Defendants can go to their local CAB and receive advice about what to do with the claim. The Government accept that a retailer arguably has a legal right to recover any additional costs or losses directly caused as a result of dealing with a case. However, we appreciate that there is no statutory or other clear basis for setting the amounts of such costs or losses that can be recovered in an individual case. Therefore, the amount of money, if any, that a retailer can recover from an individual accused of low-level theft in respect of its wider costs is entirely a matter for the courts based on the circumstances and facts of the case.”

Pre-Employment Screening: Criminal Records & Credit Checks Under Fire

Serious opposition is mounting at the state level against using credit checks in making hiring decisions.  Perhaps this comes in light of the recent economic recession and fear that otherwise qualified candidates will be rejected, but it comes at a time where many states are also imposing limits on the use of criminal convictions in hiring decisions.

According to a recent article in USA Today, 25 states have proposed bills aimed at restricting when credit histories can use in the hiring process.  A recent article in the Pittsburgh Tribune-Review that cites efforts to remove the question, “Have you ever been convicted of a felony?” from applications for city jobs there is indicative of the thought process.   The EEOC has long given guidance to employers that criminal convictions cannot be used capriciously in the hiring decision, but the movement towards ignoring them altogether seems like a new trend.

First Prosecution under UK’s Corporate Manslaughter Law

In the first prosecution under the United Kingdom’s Corporate Manslaughter law, a private company was held responsible for a “gross breach of duty of care” that resulted in the death of an employee.

The company involved, Cotswold Geotechnical Holdings, employs eight people. Its senior management consists of Peter Eaton, who is its sole director and major shareholder. He was charged with gross negligence manslaughter and a health and safety offense, but a judge ruled last year that he was too unwell to stand trial.

The prosecution contended that the employee was working in a dangerous trench because the company had failed to take all reasonably practical steps to protect him from working in that way. During the trial, it showed that the company’s health and safety policy document had been written by Eaton in 1992 and had not been updated since that time. It also showed that the company had been warned about allowing employees to enter unsupported pits in 2005.

To read more about this decision, click HERE.

NLRB Considers Scope of Employee Witness Statements

The National Labor Relations Board (NLRB) has invited interested parties to file a brief in a case, Stephens Media LLC d/b/a Hawaii Tribune Herald, which will assist the board in determining the scope and treatment of employee “witness statements.”

In previous decisions, the NLRB held that an employer does not have a duty to furnish witness statements to a union representative. The Stephens Media LLC case involves a reporter for the Hawaii Tribune Herald who was fired for insubordination after he attempted to accompany a circulation clerk, who was a shop steward, when she was called into a meeting with a supervisor.

The union requested all information considered by the company in firing the reporter. But the company only turned over the reporter’s discharge letter and personnel files. It did not provide information given by employee witnesses interviewed during the company’s investigation of employee misconduct. 

If the NLRB finds that employers are required to turn over confidential witness statements, employers’ ability to conduct effective investigations may be compromised. An amicus brief has been submitted to the board by Society for Human Resource Management (SHRM), the Council on Labor Law Equality, and the U.S. Chamber of Commerce. It supports previous NLRB cases holding that there is no duty to furnish witness statements. To review a copy of the brief, filed by SHRM, click HERE.