Tricky Behavior Is Not A Treat In Retail
Oct 29, 2019

Retailers and restaurants deal every day with people who are disorderly or even appear to be downright scary.


Misbehavior just outside a business’ doors can include: begging, loitering, drinking, selling or using drugs, passing out, being “on the nod” from drug use, graffiti, fighting, camping out, yelling, and, in urban areas, even more shocking or unsanitary behavior.


Businesses also encounter unwanted behavior from customers who soon wear out their welcomes: the irate, those who overstay their allotted reasonable time, those who misuse bathrooms, and those who harass employees or customers.


On either side of the threshold, there are also people who threaten or act violently when contacted by employees or security personnel to enforce store policy. It is important to note our focus is always on the behavior that creates the hazard, not on the status of the person, such as apparent homelessness.


Such bad and often criminal behavior scares customers away, distracts employees from their work, and can create the risk of loss and injury to both customers and employees. 


Worker Worries

The Occupational Safety and Health Administration (OSHA) defines workplace violence as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.  These acts of violence are mainly committed by people who have no legitimate reason to be on the premises. 


According to the Bureau of Labor Statistics, 16,890 workers in the private industry experienced trauma from nonfatal workplace violence in 2016. These incidents required days away from work. Of these, 1,410 were related to violent incidents, whether intentional or unintentional.  And a recent NIOSH study revealed that, retail work is one of the highest risk jobs for workplace violence.  When bad actors commit an act of violence against your workers causing injury, the emotional impact on the worker will likely also influence their motivation to return to the workplace, due to the concern that another incident may arise.


>According to the Bureau of Labor Statistics, 16,890 workers in the private industry experienced trauma from nonfatal workplace violence in 2016. These incidents required days away from work.


Customer Concerns

Violent behavior can directly impact the safety of your customers. However, the even greater impact is intangible as customers decide to choose a different place to shop where they feel they won’t be harassed, threatened or uncomfortable. 


It’s important for Risk Managers to understand the scope of the risk by determining the root cause of the problem.  Is this occurring inside the store or outside of the store?  Where specifically in the store or out of the store is this happening? Is this systemic or is it isolated to a single store?  Do landlords need to improve their maintenance and security programs? Is there a company policy that makes mitigating these losses more difficult to control?  What loss control measures can be put into place to help prevent these losses from occurring?  How can you train your managers and workers on how to respond to these type of incidents?


John Dahlberg, a California attorney and former police officer, discusses how to deal with these retail risks in his article “Dealing with Homeless Persons at Grocery Stores”.  He discusses several strategies to stop chronic undesirable behavior on the premises, such as: effectively and persistently involving local police beat cops, specialists and police leadership, and how also effectively to use criminal and civil court restraining orders when necessary to ban from business premises the people who chronically trespass and create nuisance conditions, as well as those who harass employees and customers, or who make any threats of violence. 


Aside from the injury risk, employees also need to be trained on how to deal with these situations to properly avoid a defamation claim.  Your employees should also be trained about how to avoid problems of “implicit bias” when calling the police.  They should also avoid using any force or threats of force to eject trespassers and should avoid any touching of trespassers, no matter how slight, unless it is truly necessary for self-defense or the defense of others.  Understanding how and when to engage law enforcement is a necessary element is dealing with this exposure if there is a chronic issue at the store.  For more tips, refer to our March 2019 article on the effects of shoplifting in retail.


Find practical ways to deal legally and effectively with menacing behavior in restaurants, stores and shopping centers.  Not only does unwanted third-party behavior have the potential to cause injury to your employees and customers, it also may have the intangible impact of loss of business and damaged brand reputation, prompting shoppers to seek surroundings more suitable to spend their time and money during the Holiday season and beyond.


Mary McGurn has 30 years of industry experience and leads the Retail Practice at GB. You can find her on LinkedIn.


John Dahlberg, Partner, Dillingham Murphy, LLP, represents California grocers and other retailers in a wide variety of subjects including how to stop trespass and common nuisance activities on either side of your doors. He is a graduate of Yale University Law School.  You can find him through his firm website here.


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