Legal Question in Employment Law in California

Re: employee theft

The answer depends upon your relationship with your

employees. Usually, employees are employed at will.

That means that you can fire them any time for any

reason except for an illegal reason. Illegal reasons

include race, religion, gender and retaliation for

the exercise of some right by the employee. Thus,

if this employee who you suspect of theft is an

at will employee, you can fire her regardless of

whether you have proof. Employees are not at will

if there is some sort of contract that restricts

the employer's right to terminate the employment.

The contract need not be a formal, written one.

Employment contracts are sometimes inferred from

past conduct by the employer. If, for example,

you have ever told your employees that they could be

fired only if they did something wrong, then you

might have given up your right to fire them unless

they did something wrong. The bottom line is that

you should meet with an attorney and review in detail

all of your relations with your employees so that

you can get a reliable legal opinion regarding your

risks if you fire this employee.

Re: employee theft

First, I assume there is no union contract. Second, is there an employment agreement with the employee? If so, you need to follow it. Third, if you have an employee handbook or manual, you should follow the procedures and standards therein.

The basic rule in the California is "act will" employment. Either the employer or employee can end the relationship to anytime with or without cause. You can change the at will status by an express or implied agreement. If there is no express agreement, the courts look to the following factors, without limitation, in deciding whether there is an implied agreement to terminate only for good cause. These factors include statements in employee manuals or handbooks, length of service, regular promotions and commendations, and statements by the employer to the effect "if you do a good job, your future here is secure."

If the employee is at will, you do not need evidence. If the employee is not at will, stealing is probably good cause. You should conduct a reasonable and good faith investigation including interviewing potential witnesses. You can suspend the employee during the investigation, with pay. You should interview the employee and any witnesses he or she suggests. Even if the employee is not at will, if you make a reasonable good faith investigation and decision based on that investigation, that decision will probably be upheld.

If the employee is the protecting class such as African-American or 40 +, there is a substantial risk of discrimination counterclaim. If the employee is female, there is a substantial risk of a discrimination are sexual harassment counterclaim. If the employee will steal from year, he or she is probably willing to lie about you. That is a whole other can of worms.

Be very careful what you say about the employee to other employees and especially anyone outside the company. The employee may sue for defamation. Even using security guards to escort the employee off premises can give rise to a defamation claim. I recommend a policy of not giving job references beyond dates of employment and position held. You should follow this policy in all cases.

Document your investigation. Act as if the jury is watching you, because it may be.

I recommend consulting with counsel knowledgeable of this area before making any decisions. This e-mail reply is obviously only a brief summary of employment law.

For future reference, I recommend at least having a written employee manual that all employees agree in writing to comply with. The employee manual will include a statement that the employee is at will. I prefer written employment agreements with all employees.

This reply is a courtesy and does not create an attorney client relationship.