We recently concluded a case involving a “big box” retailer and an employee working as an asset protection manager. Almost all major chain retailers have some form of asset protection employees (managers and staff) whose primary job is to help minimize “shrinkage” i.e. theft through shoplifting. Frequently, in performing this job these asset protection employees are confronted with violent individuals, yet they lack the skills, training, resources and experience to properly handle such incidents. This is a foreseeable and predictable outcome based on the nature of the job and the character or condition of the individual committing the attempted theft.
When a shoplifting incident escalates, the asset protection employee is placed in a situation that has moved from shoplifting deterrence to an actual violent conflict, where the health and safety of the asset protection employee, other employees and customers is placed in jeopardy.
However, California law states that an EMPLOYER has a LEGAL DUTY to provide a safe place of employment.
Labor Code Section 6400 (a) provides that “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” Labor Code Section 6403 provides that “No employer shall fail or neglect to do any of the following” (a) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe. (b) To adopt and use methods and processes reasonable adequate to render the employment and place of employment safe. (c) To do every other thing reasonably necessary to protect the life, safety and health of employees.” Emphasis added.
Despite this statutory language, many employers fail to hire adequate security. Instead the employer will in essence try to have the untrained, unarmed (with anything) asset protection employees serve as de facto security, while issuing a written policy to avoid physical conflicts. Why? Because security costs money, and words (i.e. writing a policy) are cheap. The end result is that when the entirely foreseeable physical altercation happens, the employer who is failing to meet its legal duty fires the employee for violating company policy!
We believe that this practice is widespread among the national chain stores operating in California, and represents an effort by certain of these chains to avoid their legal duty, and/or attempt to improperly shift their legal duty onto their employees.
We believe that workplace safety litigation under the evolving interpretation of Labor Code 6400 will continue to be a growing area of law, as employees and customers will demand that it is reasonable to expect that they can go to work, or shop at a store, without fear for their personal safety.
Adishian Law Group is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of December 2014, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 8 States outside of California and 9 foreign countries — in over 380 legal matters.
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