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In It Isn't Maybe so Simple (March 2022), the importance of security and stability is discussed. The point there being that towns are dependent upon the people who live and work there. There is a symbiosis in in which the whole (town) thrives, or not, largely in keeping with whether the people and businesses there thrive. A recent news headline about business raised similar thoughts.
CNBC recently reported that Fed up with the rise in thefts and shoplifting, small-biz owners across U.S. are taking action. The crux of the story regards laws that have left store owners largely on their own as regards theft. Various governments have set "theft thresholds" and are unlikely to pursue criminal charges when the value of what is stolen is below such thresholds. From the perspective of government, some level of theft has become not criminal, but merely a nuisance or perhaps a "cost of doing business."
A similar argument was made decades ago as regards the minimal impact that any particular misguided farmer might effect by growing more wheat than the government thought appropriate. In 1941, an Ohio farmer exceeded the harvest limit that the government had dictated for him (by about 250 bushels). Despite having some rather large fish to fry (Nazism, Hitler, Japan), the full might of the federal government was brought to bear on this farmer in the midst of World War 2.
Eventually the United States Supreme Court in 1942 unanimously upheld the government's authority to regulate this farmer's wheat production. Wickard v. Fillburn, 317 U.S. 111 (1942). A major conclusion in the court's analysis was that the cumulative effect of many small incidents could have a significant effect on interstate commerce, thus empowering the federal government to regulate under the Commerce Clause. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)("an aggregate impact on commerce"). An apt comparison of the logic might be the "death of a thousand cuts," in which each is perhaps minor, but the overall impact is significant ("death").
In a seemingly similar spirit, the article notes that some police agencies will now pursue criminal activity if an offender is seen as a larger threat due to multiple otherwise non-actionable allegations. An industry group spokesperson notes that "several states are looking at ways to aggregate multiple crimes so that when an individual does go above the felony theft threshold, it will be easier to bring charges." It seems that such an aggregation would necessarily mean that the police would have to respond to calls regarding the smaller thievery and thus identify the thief and quantify her/his spoils from each theft. Or, perhaps video evidence could be used to charge multiple offenses upon an initial arrest.
Any propensity of the police not to respond may implicate safety. Workplace violence is a real threat to the health and safety of workers. The Occupational Safety and Health Administration (OSHA) identifies this as "the third-leading cause of fatal occupational injuries in the United States." However, it can also be a broad range of behavior that is not fatal, including "any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior." OSHA suggests that employers strive to minimize the potentials for workplace violence.
Various employers are said to have instituted policies directing employees not to confront or to touch shoplifters, an avoidance technique at least in part driven by apprehension of workplace injury. Atlantic Public University (APU) claims employees perceive employers as "ignoring the problem," as they are "forced to stand idly" and not confront suspected shoplifters. This article contends that shoplifting losses in the U.S. "exceed(ed) $45 billion" in 2021. Some would conclude that cost is significant, and it likely impacts the cost of goods for all consumers and perhaps retailer decisions about ongoing business.
The APU article notes another disturbing impact on workers, the business closure alternative. It asserts that some companies are closing stores and withdrawing from communities. Although examples are cited, there is not broad evidence provided to support that such closures are predominantly related to shoplifting losses, compared to the many potential factors a company might consider. However, the example of Walgreens' closure of 53 locations in San Francisco is cited as one notable example in support of the hypothesis. This cites theft specifically.
CNBC notes that as a result of multiple small thefts, some businesses claim to be "losing thousands of dollars each month." They are allegedly fearful to submit all of those losses to their insurance companies for "fear of being dropped." Thus, they perceive that they are in business in environs where the local laws do not protect their property rights and have concluded, right or wrong, that their contractual relief (insurance) is not the best path either. One retailer cited claims to have lost about $8,000 per month in Denver.
Instead of resorting to insurance to socialize the losses, these small retail businesses (and perhaps larger ones) are "taking matters into their own hands." They have begun "charging a 1% crime spike fee on all transactions" in some settings. Others are hiring private security, and some are allegedly "shutting down completely," according to some sources (as noted in the Walgreens example above). Locations noted in that story include New York City and San Francisco. Overall, the issue with theft appears to be increasing, according to a cited poll.
Although the story refers to the theft as "shoplifting," it also describes incidents that involve weapons. Shoplifting is defined as "willful theft," but the definition does not mention violence. One cited "shoplifting" instance allegedly documented on video shows a thief who selects plunder, "then threatens employees with a 2-foot-long machete and walks out of the store with stolen merchandise." That, to some, may instead be armed robbery. And, that potential for violence has shop owners concerned also. It is very likely that any employee threatened with a machete would feel "harassment, intimidation, or other threat," as OSHA warns.
The situation is notable in that thievery is now seemingly accepted as a part of our lives in some places. One shop owner noted poignantly "I can't depend on the police anymore. I just have to protect my business." What is the impact on workers? There is a symbiosis between workers and employers, illustrated nowhere better than in workers' compensation. Here, each yields rights in this legislative compromise and gains benefits in exchange. There is no winner or loser, but a détente that somewhat protects each. In a larger sense, business needs workers and workers need jobs. Communities need retailers and retailers need customers. There is a balance at work.
The situation of workplace violence threats is not limited to retail. CNBC notes restaurant operators expending resources on "protect(ing) our managers and our staff from some unruly guests." The cost of security is significant, and the threats of violence are too prominent in the news. The news has brought us descriptions of fast food disputes, mask disputes, and more. People's frustrations and anger are being directed against innocent employees who face potential injury, and indirectly against employers that face potential liability for injuries to employees or others.
In the world of work, what will be the cost of commerce? Will businesses remain willing to operate local retail facilities (and provide those community jobs) despite the perceptions of insufficient legal protection? Will employees be threatened and harassed in the workplace, flee from assailants, or otherwise be put in situations that risk workplace injury? Societal acceptance of some level of theft as a cost of doing business is impacting employers, as well as the employee that is threatened with or injured by violence.
The end result of the challenges may be lost jobs, or worse personal injury. It is challenging. There are those who are vocal about law changes seen as precipitating or allowing poor behavior. The Los Angeles Times notes criticism of California law changes there regarding punishment for theft of less than $950.00 "A thief can go from store to store grabbing $900 worth of merchandise at each and it’s still a misdemeanor"). A similar value limit has been criticized in Chicago, according to ABC7 News.
While the issues of theft seem unrelated to workers' compensation, the issue of work availability and a safe workplace seem to be intertwined. The safety of workers can be a significant challenge in the best of circumstances, and may be more so in the worst. If the law leaves retail and service businesses unprotected in the interest of community savings or otherwise, there seems a real potential for business closure, loss of jobs, and workplace injury. It is a curious and intriguing challenge for government, business, and workers.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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