Contributed by Christina A. Stoneburner

Recently, the Supreme Court of Illinois upheld a damages award against an employer who took it upon itself to go to some unorthodox lengths to determine if a former employee had violated a non-competition agreement.  Although this has been a hot topic in some of the franchise world’s forums, I must say I am a little surprised by the sweeping declarations that “pre-texting” cannot be used in any circumstances.

Let’s review the very egregious facts of the case in question, Lawlor v. North American Corporation of Illinois.  In Lawlor, the employer hired counsel and an investigator to try to determine if Ms. Lawlor had violated a non-competition agreement.  In order to try to prove their case, the company turned over Ms. Lawlor’s address, Social Security number, and telephone numbers.  The private investigators then pretended to be Ms. Lawlor, contacted her telephone providers, and requested duplicate copies of her phone records.

Is anyone shocked that committing identity theft and obtaining phone records under false pretenses is against the law and could result in liability? I should hope not. Does this necessarily mean that “mystery shoppers” cannot be used by franchisors to investigate franchisees?  I don’t think so.

A mystery shopper is not at all similar to the “pre-texting” that went on in the Lawlor case or in the well-publicized HP pre-texting scandal.  Instead, a mystery shopper is contacting the company like any other customer, speaking with sales personnel, and purchasing product to determine quality of service.  The information the mystery shopper is getting is the same information that any member of the general public gets when transacting business with the company.  

In short, I do not think the Lawlor case is the death knell of mystery shopper programs.

Further, I cannot imagine how any franchisee could legitimately complain about a bad review by a mystery shopper.  What argument would be advanced by the franchisee?  “If I had known you represented the franchisor, I would have treated you better than any of my other customers.”  I do not see much jury appeal in that argument.