Termination for stealing

jdawson

A six-month employee was suspected of stealing money. The office manager conducted her own investigation (looking through billing records and accounts receivable records - no interviews) and determined her suspicion was correct. The employee was terminated the next day. When employee asked for a reason the response was repeatedly, "We no longer require your services, here's your final check, please turn in your key." No signed at-will agreement, yet no employee manual or written/oral contract guaranteeing prolonged employment. California is an "at-will" state. Any problems with not providing the employee any reason whatsoever for termination? Should the real reason ever be given in this situation?

Craig

Sure the real reason should be given. Preferably before discharge to give the accused a chance to respond. Unless the manager was 100% sure & could convince me of the same, I wouldn't give the OK to discharge without talking to the employee.

dhnyct

Also, if the manager can prove theft, should the company prosecute?

PMI

I agree with the previous posts. Absolutely you should be straightforward with the terminated employee and give her a chance to respond. If I can play devil's advocate for a moment, can you be absolutely sure that your manager who conducted the investigation is not the person stealing? Are you in a position to prove, in court, that the terminated employee stole the money, and not another employee who set the employee up to take the fall?

Paul

According to the latest ruling from the EEOC, if and employee can show that the reason for the termination is other than what is provided to them, then they have a case for discrimination. I don't have the citation in front of me right now, but you would be well advised to brush up on this ASAP as your company has a major potential for problems if the employee does go to the EEOC.

Michael

1. was employee still on probation? if so the reason given is probably adequate; however, if the terminated employee presses the point the employer may have to back track and explain why the actual reason for termination wasn't given to the employee.

2. was there a collective bargaining agreement? company policies that cover such termination? a contract? if so, do they address the issues?

3. isn't california a for-cause state? if it is, the reason given is probably inadequate and would certainly be subject to challenge. again, it will look bad for the employer when it is shown not to have been forthright.

4. was a police report made? was an investigation conducted by someone who didn't have access to what was stolen? if not, the termination was probably premature. further, it is not unknown for the person pointing the finger to be the culprit. would an impartial investigation clear the terminated employee? would it point to someone else? if the real reason for the termination is discovered would the former employee have grounds for a wrongful termination action? probably. what about infliction of emotional harm. depending on circumstances,probably. defamation, maybe. if someone can collect $4 mill for pouring a cup of hot coffee in her lap, anything is possible.

xsafford

In a situation like this I would suggest confronting the employee with the facts. If they have no excuplatory evidence, then I would probably offer them a chance to resign. Depending on the severity, I might or might not challenge their claim for unemployment insurance. Under almost any circumstances imaginable it will be very difficult to challenge or undo a "voluntary resignation".
With regard to contacting the police, I would only do this for a case of major theft. When you start looking at the evidence as it would be seen in a courtroom, it is very difficult to prove theft or any other offense. As an example, in my company we had a Buyer caught on tape attempting to extort a bribe from a vendor. Despite our having the tape, she steadfastly denied ever doing this. In the hard light of day we concluded that we could not successfully prosecute her. Also, an occurance of this kind reflects very poorly on a company and its management. No one wants to drag it all out in the open.

CuriousG

Even most "at-will" states recognize the common law principle of a "covenant of fair dealing." This means you and the employee will deal fairly and reasonably with each other in all matters concerning the employment relationship. Executing summary judgement on an employee, without giving him or her a chance to present his/her story, does not seem reasonable, or fair.

I tell my supervisory and management staff I prefer them to tell the employee "You are suspended without pay pending a thorough investigation and descision upon your continued employment." This gives the supervisor a chance to review any "evidence" of wrong doing with me, and if necessary legal counsel before we carry out "capital punishment." I try to always give the employee a chance to tell their side of the story, and if possible get them to put it into writing.

Just because an employee is in a probationary status does not give the employer any extra legal right to terminate employment, unless there is a clear statement to that effect in the employment agreement with the employee. You might be able to cover this by spelling it out in our employment policy and publishing it in your employee handbook. The problem is the more terms and conditions you spell out in the Employee "Handbook" the more it is going to look and smell like an Employee Contract. Employers are just as liable for discrmination complaints during probationary periods as they are after. Likewise complaints for wrongful termination, or constructive discharge.

Rockie

I, too, thought that California was a "for cause" state. I know their state laws are very much "pro-employee" and much more generous than some of the federal laws.

At any rate, being from South Carolina, we are an "at will" state. I never use the term "probationary" employee as this denotes that after an employee has completed a so called "probationary" period, there has to be good cause for termination. Pure "at will" means an employee can be released from employment for any reason or no reason. The employee has the same option to terminate the employment agreement for any reason or no reason. You certainly can state to an employee simply "your services are no longer needed" and this is frequently done in "at will" situation. However, most employers don't use these tactics.

If you have absolute proof that the employee is a thief, I would definitely give them the reason for the termination. This would mitigate your unemployment liability as this is gross misconduct and not many states grant unemployment in this type of termination. Otherwise, if you just terminate "at will", then unemployment is almost certainly a "given".