But She Stole Stuff From Us!

Steven Cesare, Ph.D.

A business from New York called me the other day to say it wanted to terminate an employee immediately for stealing from the company. When asked if the company had conducted an investigation into this allegation, all I heard repeatedly was “She is a thief!”

After that refrain ended, I was informed that a company representative walked past the employee’s car and noticed various domestic products (e.g., toilet paper, cleaning supplies, napkins) in the back seat. The representative went to the office kitchen area and noticed those same items were coincidentally in short supply. The representative quickly conveyed the facts to Human Resources and executive management who reflexively decided on termination.

The business executive who called me made it all too clear that she wanted the employee to be terminated for theft. While I am no fan of thieves and loathe theft in all forms, I informed the executive that “theft” is a legal term possessing a precise definition dependent upon local or state jurisdiction; and as such, using that term may provide a high legal threshold that may be arduous to prove if contested in a court of law (i.e., wrongful termination). At that point in time, the executive said “But she stole stuff from us!”

In place of accusing any employee of theft, and thus bypassing any potential legal maneuvering, a more correct path is to show that an employee violated the company policy of having “removed or was in possession of company materials without authorization.” Likely sounding a tad bureaucratic, I asked the executive if the company had such a policy in place. After an awkward lengthy pause, “Not exactly” was the response, followed by, “But she stole stuff from us!”

You already know where this is going…

Not only did the company not have a policy on this topic, it does not have a current Employee Handbook, that the employee in question ever signed. So much for the policy violation angle.

With that new-found information in the open, I suggested the company conduct the obligatory investigation and ask, but not accuse, the employee about the domestic products seen in the backseat of her car. Remember: the employee is guilty until proven innocent; in lieu of an at-will dismissal, the company has the burden of proof to show employee culpability. Naturally, the investigation would continue by meeting with any available witnesses and reviewing any surveillance camera footage.

Speculating further, in the event that the employee denied any wrongdoing, coupled with the fact that there were no affirmative witnesses or surveillance evidence, the company should take the following action:

Despite the circumstantial evidence, not accuse the employee of anything in that such an unproven allegation, let alone “theft,” could spawn a gender/racial discrimination/harassment claim.
Partner with a Human Resources Consultant to develop a current Employee Handbook and get every employee to sign it.
Include the following language policy language in the new Employee Handbook: “Unauthorized possession or removal of materials or property from company premises or the premises of a client that belongs to or is in the possession of the company, another employee, a client, a supplier, or a visitor is strictly prohibited.”
Include a Desk and Locker Inspection Policy in the new Employee Handbook that allows “the company to reserve the right to inspect employees as well as an employee’s locker, desk, or personal possessions (e.g., book bag, brief case, back pack packages or articles that might conceal inappropriate materials) at any time, with or without advance notice or consent. These inspections can occur before, during, or after work by a company-designated employee for any reason (e.g., voluntary consent, reasonable suspicion, plain view, emergency, vehicle).”

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