What to Do When an Employee is Caught Stealing

When an employee is caught stealing, it is critical for an employer to have a specific and consistent response, both from a legal and a discrimination perspective. While this situation may not have occurred in your company, it is important to acquaint yourself with the pertinent guidelines should it unfortunately happen in the future.

Steps you should take in response to employee theft:

Be sure to do due diligence before taking any action such as termination in order to prevent potential legal action by a terminated employee. Your investigation should:

include a direct interview with the accused rather than only relying on reports of others. In that interview, present the evidence against them and ask for their side of the story. The employee’s story should be included as part of the record of the investigation. (This prevents a jury from the perception the employee was railroaded.)
involve at least two individuals, preferably one who does not personally know the subject. (This prevents the employee from suggesting the conclusion was based on investigator’s personal hostility towards them.)
follow your company’s protocol and written procedures for investigations if there is one.
include all individuals who may have relevant knowledge.
include witness statements in their own words and handwriting.

Once all the information is compiled, carefully review it and verify that all the details are correct. In the case of lawsuits arising out of termination for wrongdoing, employees often try to attack the quality of the investigation. It is the employer’s job to prove an accusation of theft beyond a reasonable doubt.

Be sure your company has consistently enforced its rules. An identical offense should always be dealt with the same way, regardless of the individual involved. (Disciplinary decisions should never depend on gender, race, age or other personal factors. That can be considered discriminatory behavior.)

If you suspect theft and are attempting to gather proof, the means you use can open you up to potential lawsuits. Be aware that:

Hiding recording devices (digital recorders, baby monitors, etc.) in places such as company break rooms, is illegal under federal anti-wiretapping laws.
Not letting the employee leave an investigatory meeting without going through a person leads to false imprisonment claims.
Lie detectors used in investigation of monetary loss are also regulated by federal law.

To prevent these legal situations:

Have all employees sign an acknowledgement that they understand they have no privacy rights in items they choose to bring on the premises.
Employees should also acknowledge and consent to being under video surveillance.
Employees should be made aware that participating in investigations being conducted by the employer is mandatory and that refusal may result in termination.
Expressly advise employees that if they violate policies pertaining to the protection of company assets, they may be terminated without any finding of any intentional wrongdoing on their part.
Employee theft is a disturbing situation and should be dealt with. However, how it is dealt with is critical to avoiding potential litigation. It is advisable to enlist the services of a lawyer to help you through the process and safeguard you against legal action on the part of the employee.

Should you have any questions related to how to deal with employee theft, please contact us online or call our offices at (561) 653-0008. At Scott Law Team, our approachable and knowledgeable lawyers are dedicated to providing skilled legal representation for your unique situation.

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