Using Company phone while out on disability

stellad

We have a supervisor that has been on disability for 2 months on a non-job related injury. Well we recieved our company cell phone bill and he has used over $400.00 worth of calls on the phone, I called him to his home and the person informed me that he no longer lived there, so of course I disconnected the cell phone and started searching for him, in the meantime there are calls going to and from texas and calls to our competitors office. I sent a cetified letter to his sister home, infoming him that he needed to come in and turn in the phone and to bring the $400.00, if not we would have to consider it a theft. He needed to give us a response by 9/10/04. He came in today and informed us that he did not have the money and that he did not make the calls to our competitors,, and yes he was in texas, now I called his doctor several weeks ago becuase we needed him at his position and the doctor informed us he would have to speak to his patient ans it was his call to return to work. I offered modified work but the doctor came back and said no, Ok the terminal Manager wants to terminated him, my question is will we be getting on some legal matter since he was on disability while all this was going on?

Balloonman1

What is your policy on phone use, and utilizing company resources?
How does he explain the calls to your competitors? Who else was using the phone? What were his restrictions? Just cause you can't work doesn't mean you can't travel! Although it ticks you off....... Need more info before I would term.
My $0.02 worth.
DJ The Balloonman

stellad

He may use the phone up to 500 min but he passed the minimun and also he claims he did not call the competitor when we confronted him. he has the phone with him all times, to be used only by him. His restrictions are to keep off his leg and no walking , being that he is a supervisor all we wanted for him to do was sit and count frieght. and he will be released from that on 9/15/04, but the issue is the phones calls and the 400.00 that now he claims he does not have. The reason that the terminal manager wants to term him, is that he was dishonest about the phone, calling the competitor, he can says he did not call but the number is on the bill not once but about 20 times, he can work but chose not to.

SMace

1. Is he on FMLA?

2. Is his physician aware of the physical demands of his job? You should supply that info.

3. On what basis does your terminal supervisor want him terminated?

4. Knowing CA, I doubt that you can require him to pay you the $400 even if you had a signed acknowledgement from him that allows you to do it. I bet you don't have one. CA expert can weigh in on that.

5. If he is on FMLA, your on thin ice to terminate unless you have a clear cut policy and/or precedence that allows you to terminate someone for excessive use of a cellphone. If you terminate, you should have proof that others in your company are held to this standard.

Sounds like your supervisor is pissed and his knee jerk response is to terminate. You need to slow everyone down, get all the facts and proceed. If you answer some questions, I can give some more specific guidance.

Balloonman1

I would inform the disability insurance company that you had work available for him within his restrictions and he refused it. :-)
Second when he returns to work, put forth a repayment agreement for him to sign, $50.00 a week until repaid, and the okay to take it out of his last check if he should terminate his employment for any reason.
Then see how it proceeds......
My $0.02 worth.
DJ The Balloonman

stellad

1)no he is not on fmla, he himself decided he was going to only be on state disability.

2 yes he's doctor knew that the only thing required was just to sit, and still informed me that he would have to consult with his patient. His reponse days later was that he chose not to work.

3. want to terminate on basis of theft.

4 you are right nothing signed on the phone.

thanks smace i have told them to hold off on this til I checked on this issue.

stellad

SMace

1. I assume that is his choice. In my states, they don't have that choice.
2. I like B-man's response to notify the disability co. that you have work available and he chose not to do it.
3. Stealing cell phone minutes. I'm having a hard time wrapping my brain around that one. Unauthorized use maybe, stealing I don't know.
4. Check state laws regarding requiring the money or termination. Maybe CA folks will weigh in. If they don't, I would consult an attorney before I used that basis.

I hear emotion ruling the process. Get all the facts quickly and proceed.


Best case, you fire him and you never hear from him again. Since he's on disability he may not care and just continue to milk that as long as he can.

Worst case is he sues you for violation of your state's FLSA (if applicable) and/or any other crazy CA law he can use (he may stretch for ADA or CA's ADA).

Based on the info you provided, I would not terminate. I'd discipline him and then focus on getting the disability payments stopped.

Whatever

I'm curious. Is the right to determine whether or not an ee (rather than the employer) is on FMLA a California thing or company policy?

Ethel

Surely, even in California, an employer can terminate an employee for mis-use of company property, not following company policy (assume that there is a policy stating limitations for company phone use). The man has caused the company to pay $400 -- that should count for something. If we had an employee use a company credit card for $400.00 on personal expenditures -- I do believe we would fire him/her.

The HR world is so complex these days!!!! You can tell, this really does frustrate me!!!!@

ScorpioHR

"an employer can terminate an employee for mis-use of company property, not following company policy (assume that there is a policy stating limitations for company phone use). The man has caused the company to pay $400 -- that should count for something."

I terminated an ee after discovering he was using his company cell phone for EXCESSIVE personal use-I also had him sign a form authorizing the deduction from his wages of the money he stole from the company, it was taken out of his final check.-The cell phone issue is addressed in our employee manual. I am a little unclear why anyone would think this is not out and out theft and misuse of company property-It is obviously both.

SMace

Based on the information given I would not terminate him.

>I terminated an ee after discovering he was
>using his company cell phone for EXCESSIVE
>personal use-I also had him sign a form
>authorizing the deduction from his wages of the
>money he stole from the company, it was taken
>out of his final check.-

She doesn't have this. Don't forget, she is in CA and I would not assume their laws are the same as other states.

The cell phone issue is
>addressed in our employee manual.

She never responded that she has a policy regarding cell phone use.

I am a little
>unclear why anyone would think this is not out
>and out theft and misuse of company property-It
>is obviously both.

I think of theft as taking a tangible object. When you are doing non-productive work on the internet are you stealing from the company? When you make a personal call are you stealing? Unauthorized use sure, stealing...I don't know.

I'm giving advice based on her situation, not what I've done in the past.

ScorpioHR

I see no difference in an ee using their company credit card to purchase personal items or an ee using their cell phone to make $500.00 in personal calls. I still see it as stealing-Maybe we could agree to disagree "agreeably!"
Scorpio

SMace

I think we can do that. I've had a few people disagree with me. I've even been wrong a few times, although I rarely admit it.

I agree that you could classify it as stealing. I think it's quite a heavy label to put on someone that uses their cell phone for personal use. I prefer unauthorized use, get them to pay and move on (whether it's term or no term).

We'll be praying Ivan weakens and stays west. xpray

ScorpioHR

"I think we can do that"!!

excellent, I have no energy to disagree "disagreeably" today x:-) I have been fielding phone calls, e-mails etc from concerned ee's. Looks like Ivan at present, will cause more havoc here than we have endured the last 4 weeks. We will announce at noon today that all Centers and admin offices will be closed on Monday. From Tuesday on we will just have to "wait and see". All prayers are appreciated!
scorpio

SandiF

>I see no difference in an ee using their company
>credit card to purchase personal items or an ee
>using their cell phone to make $500.00 in
>personal calls. I still see it as stealing-Maybe
>we could agree to disagree "agreeably!"
>Scorpio


I agree with you, Scorpio. What about the person who uses your regular phone to make personal long distance calls - to me that's stealing. Good luck; hope you get to get rid of him without much more trouble. And no, you can't take money out of an employee's last pay check. Irritating, huh?

E Wart

First the issue of the cell phone. 1) why didn't you as the employer and owner of the phone CUT OFF the service as soon as you learned it was being misused and then ask for him to return it.
2) In CA you can't deduct the money from the final check (if you terminate him). Either, I would kiss this goodby or if and when he returns work out a repayment plan and have it payroll deducted but make sure he takes home min. wage.
3) Has anyone called the number(s) on his phone bill and even asked if he talked with anyone there? Someone may work with you on this and say yes he did. Then you may have more info on him for termination/violation of company policy/steeling company funds.
4) In CA I am sure he is on STD with the state. I have found them most accommodating. Have you bothered to call them and tell them that you have offered the employee employment that he is able to do (and meets the limitations/restrictions) and he refuses it. I feel sure they will cut off his disability.
5) I would write the employee (Send certified and noncertified.)Say that according to the attending physician he has been released to return to work with restrictions. You have work that he is able to do (skill wise) and meets these limitations. If he doesn't return by a certain date, you will consider he has self terminated/resigned his position. This may solve your problem if he doesn't show up.
6) If he does return to work, I would then address the phone issue, using it excessively, calling competitors, etc. (Especially if you received verification he called). Either terminate him on this if you have enough info or write him up on it and work out a repayment plan. (I would take the phone away from him due to misuse.) I would make sure you develop a policy and anyone who is given a phone signs it. (What do you do when someone terminates and they don't return the phone.)
E Wart

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 09-10-04 AT 10:28AM (CST)[/font][br][br]The most alarming thing to me would be the 20 calls to your competitor. I notice you're in California. In Mississippi, we would fire him for that alone. If he's in sales or engineering or a similar customer-sensitive position or deals with proprietary information, it could and WILL have consequences for your company. Not only has he been calling the competition, he has lied to you about doing it. Find a way to fire him. But, if you can't, don't be surprised when he resigns and goes to work for them.

(edit) And I agree with the 'stealing' conclusion if charges are being incurred and billed to the company. It's just like using company postage. One does not have to pick up a physical item and abscond with it in order to steal.