Brownness

Dealing with Employee Misconduct (Legal Reasons #3)

As an employer, I have seen varying ranges of things employees do, but the most frustrating is employee theft. I understand how dispiriting it is to discover someone put in a position of trust violates that trust. Yet it is important to follow certain standards before accusing and firing them. I also realize there is an instinct to garnish wages, involve the authorities or threaten to, but it is important to have protocols in place.  Moreover, there are limited things you can do as an employer, but if done right can let other employees know this type of behavior is taken very seriously.

There are fundamental things that need to be kept in mind

  1. Gather documents. It’s important to preserve all possible evidence when conducting an investigation. If an employee is suspected of stealing, IT should be engaged to copy the employee’s work center, whether it’s a register or a computer, and download and preserve e-mails. Copies should be made of all documents related to an employee’s job, including time cards, punch records, data access records of when employees come and go, and video surveillance of the premises.
  2. Contact legal counsel. Before taking any action regarding disciplinary action, suspension or termination, consult legal counsel. There are certain considerations regarding recovery of the goods or monies that were stolen, which may be jeopardized if the employee is terminated. In addition, even if the facts support termination, the overly-broad communication of those facts or the manner in which the termination is conducted can create the risk of liability for discrimination, invasion of privacy, defamation, or intentional torts.
  3. Relax and be careful about what is said. Once an employer has received confirmation that an employee is guilty of theft and the employer is ready to confront the employee with that information, the employer should be careful of how or what is said during this meeting. The employer should not approach the suspected employee while still angry or emotional, which could create a volatile or explosive situation at the work place. The suspected employee should be approached calmly to discuss his or her employer’s concerns. Employers should be careful not to refer to the employee as a “thief.” This type of reference can lead to a defamation lawsuit.
  4. Do not deduct amounts from the employee’s paycheck. California law imposes very strict limits on the circumstances under which an employer is permitted to deduct amounts from an employee’s paycheck. Even if an employer suspects an employee of stealing, seek legal advice before deducting the value of stolen items or cash from the employee’s paycheck.
  5. Recovering stolen property

    The most common legal question presented by workplace theft is “Can the money or items be recovered?” Many times the answer is yes, if the employer acts properly to investigate, document evidence and involve legal counsel early, and the loss is significant. If counsel is engaged early on in the investigation, they can seek court orders to freeze an employee’s assets and have property returned.

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