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Are we legally able to withhold the amount of money stolen from a final paycheck?

Concord, CA |

One of our employees stole money from our deposit by closing the books early and stating that she already dropped the money in the safe. The Owner checked the safe (he's the only one with the key) and none of the money she said she put in there was present. Then we discovered that all the petty cash was stolen after we closed the office. This person had keys. Ultimately, she stated that she was going into rehab so I requested that while she's gone we do need her keys back. She then asked for her final check. I told her that she must discuss that with the Owner as we haven't fired her. Please advise if we are legally allowed to withhold the money she stole from her final paycheck. Thank you so much for your time and assistance.

Attorney Answers 6


  1. I'd with-hold the money and seek a discussion with the owner and the employee. Then following the meeting, if she has returned the funds, i'd terminate the employee in accordance with her employment agreement conditions. You may want to consult a Business Law attorney in the Bay Area to sort out your legal options as to terminating the employee. Good Luck!


  2. While your employee may be liable to you for the stolen money, you cannot short her paycheck (except for mandatory deductions like taxes) without being liable for a day's pay for each day the pay is late, up to a maximum of thirty days. Pay her in full (less mandatory deductions), then sue her and report her to the police. I'm in Oakland if you need further advice.

    www.bayoaklaw.com. 510-208-5500. This answer does not create an attorney-client relationship. It is not legal advice, because it is only of a general nature. Please contact a lawyer qualified in your jurisdiction to discuss your situation in confidence, using your factual details. Avvo answers are only general legal responses. Item 9 of Avvo.com's Terms and Conditions are incorporated in this disclaimer as though it were printed here.


  3. The two matters (salary and theft) are independent and may not be offset.

    The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.


  4. Under the facts as you have stated them, I believe that Mr. Jacobson and Mr. Doland have given you excellent advice which has the potential of saving the company quite a bit of money in statutory obligations (up to thirty days of pay) and attorney’s fees. Good luck.

    *Scott G. Nathan has been licensed to practice law in California since 1983. The information presented here is general in nature and is not intended, nor should it be construed as legal advice for any particular case or matter. This posting does not create any attorney-client relationship with Scott G. Nathan or my law firm. For specific advice about your particular situation, you should consult with an attorney immediately.


  5. You really need to speak with an employment lawyer with expertise in wage and hour issues. The labor codes are going to be very specific in regard to when you can withhold an offset. It is possible you may not be able to withhold funds. You should also immediately call the police and file a report.

    This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.


  6. I disagree slightly with my colleagues. I usually don't recommend unauthorized wages deductions, but tou actually CAN deduct for theft. Since theft will not be assumed, you must prove it. If you cannot prove it, then you have some legal hot water on your hands.

    Here is the link to DLSE. http://www.dir.ca.gov/dlse/faq_deductions.html

    Hint: always post employment/workplace questions on the employment law tag.

    Best regards,

    David A. Mallen
    310.895.0107

    David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

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