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Employer accused me of stealing! Can I be prosecuted? Do I have grounds for a lawsuit?

San Francisco, CA |

I have been working for a company for 7 years. I was fired (asked to find money or bring in the keys and uniform). On Saturday I was closing Manager and 523 is missing from the deposit. On camera it shows me counting the money and leaving the store with my phone and a soda in my hand.

It also shows me walking through the store with another employee (driver who makes the drops) as he gets in his car I give him the deposit.

The money missing from the safe is 523. My employer kept saying maybe I took the money home, maybe its in my car. I explained to them that I did not take the money and why do they keep trying to say it like I did.
I wasnt notified of missing money until that following Friday (5 days). I feel as though the person opening is responsible. She opened the next day.

Attorney Answers 2

Posted

It would be unusual to have grounds for a lawsuit under the facts you described, though more information might change my impression. First, an employer is entitled to act on incorrect, unreasonable or even ridiculous information. Unfortunately, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

There is a small chance you could pursue a defamation claim, but this would require proof the employer communicated a factual statement (as opposed to an opinion) that you stole money. Note it would be a true statement to say you were fired for suspected theft, because that is what happened.

Nothing stops the employer from turning you in for prosecution, but from what you describe, the video does not show you stealing, so the prosecutors would have to find some other way of proving the employer's allegation. Certainly they have more important things to deal with these days than the POSSIBLE theft of under $1,000 from a private business.

Your employer could choose to sue you in Small Claims Court for embezzlement or a similar offense, but again, it will have to do better than present a suspicion. Your employer could also file against you in Superior Court, but the filing fee is almost as high as the amount the employer is trying to find, so it wouldn't make sense for the employer to do so. Still, you never know what an employer will do.

You are probably better off to file a claim for unemployment benefits and devote your attention to finding another job. It will be awkward to explain why you lost your last job but perhaps you can do some volunteer work in the interim to pad your resume.

Regarding unemployment: Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if he or she is: (1) out of work due to no fault of his or her own; AND (2) physically able to work; AND (3) actively seeking work; AND (4) ready to accept work. Details about eligibility for unemployment benefits can be found on the web site of the California Employment Development Department (EDD) here: http://www.edd.ca.gov/Unemployment/FAQ_-_Eligibility.htm#Whataretheeligibilityrequirements
Your employer may claim you were fired for theft, but without proof that you stole, you should still receive benefits.

Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

I hope you can resolve your situation and wish you the best.

twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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3 comments

Asker

Posted

Another weird thing is, the camera shows me count the money, make the deposit (place money in bag). After that nothing! I never stood up with money. It was never placed in my pocket. It was one co'worker there. So where's the money? Could the opening manager have taken it easily? Im so stressed. I didn't take it.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

I'm really sorry this happened to you. It's really unfair, especially after working there for so many years. It almost sounds like you were being scapegoated, given that your employer waited a whole work week before talking with you about this. If the employer truly thought you were a thief, I doubt it would have left you working, with access to the employer's property. But as I said, even though what happened is unfair, it doesn't appear illegal. Now with a better understanding of your limited legal rights, think about a strategic solution instead. Consider tackling this directly, professionally and respectfully. Understand the company may have misunderstood events or perhaps felt there was something wrong with your work but never told you. Ask to speak with HR or someone higher up. Ask if you’ve done something indicating you are a poor worker or if you've given the employer any reason to doubt your word. Maybe something was misinterpreted, though probably not. But if so, you can explain your side. More likely you will never know what is really going on. However, a mature conversation may change the way the employer treats you and may cause a change in the decision. Whatever you do, don't challenge the employer’s authority. Indicate you want to continue your working relationship and value your job. Explain you care about doing a good job. Mention your good work record if you have one. Explain you would never intentionally do anything against the company's or your boss' interest. Remind them of how long you've worked there. Do not blame anyone else even if you believe someone deserves it; this cannot help you. Only talk about yourself, that you want to do a good job, and you regret the situation. Ask what you can do to improve things for the future. Don't give anyone a reason to get angry. The company may see you more favorably after this. Even if it doesn’t help get your job back, it may prevent a fight about unemployment and might get you a good job reference. I know it's annoying to have to do this when you didn't do anything wrong, but remember, an employer doesn't need a reason to fire you. And as we all know, the current economy is tough and jobs are hard to come by. One more thing. If you do get to talk with the employer, be sure to suggest a face-saving way out of this mess. The employer needs to maintain the illusion that it is in control and always right. You can agree to protect the employer's reputation and that both parties will say there was a misunderstanding that is now cleared up, everyone is happy, no hard feelings, etc. If the employer thinks it has to eat crow, especially in front of other employees, it will be far harder to make any concession. Help your employer give you what you want.

Asker

Posted

The camera never shows me putting the money back into the safe. I could have lwft it on the desk. Which has been done before. Although not preferable. Somebody took the money. On my termination papers it says; was responsible for ensuring night drop was put in safe. Watched video with employer and didn't see him put money back Sunday night. Next day money was missing. (Why was I not contacted that day)? Also the last frame shows me counting the money, putting It in the deposit bag amd then switches to me standing up and grabbing my things to leave. Seems to be missing footage! So weird and unusual

Posted

YOu should contact an attorney who can eplore with you whether or not you have a wrongful termination action against this employer.
Firing you under the pretext of stealing - what type of employment history do you have? You've beent here for 7 years - at the least they should have conducted a thorough investigation, invterviewed all other employees who handled the deposit/money and if so, why were you treated differently?
Call my office on Monday for a consultation, if you like.

This is my opinion and should not be construed as legal advise for your specific case as there are many more facts which you have not provided.

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2 comments

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

I agree the employer "should" have conducted a thorough investigation and interviewed all employees, but the employer did not have a legal obligation to do so. I very much wish the law were different than it is, because our employment laws are really harsh and unfair. I don't see how this asker can have a wrongful termination case. There might be something if the employee was treated differently based on age, sex, race, disability, etc. or because the employee blew the whistle or took family leave, but based on what the asker said, none of those issues were raised. Asker, what I am talking about is that w hen people talk about “wrongful termination,” they are really talking about wrongful termination in violation of public policy. For a termination to be “wrongful,” it must violate a public policy. Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. An employer cannot change terms of employment or fire you if the reason for the change is against the law. For example, an employer cannot treat you differently or fire you because of your sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status or pregnancy; because you blew the whistle on safety violations; because you complained about improper wage and hour practices; because you exercised voting rights, family leave rights, jury duty rights, or domestic violence rights; or for any other reason prohibited by law. It is not enough to be within a legally protected group. You must be able to show there is a strong connection between the public policy and the termination. For example, if an employee yelled at the boss and requested family leave during the same week, then was fired the following week, the employee must be able to show she was fired because of her request for family leave and not because she yelled at the boss. There are various ways to make this showing, depending on the facts. If you believe you have been fired or retaliated against in violation of public policy, then absolutely, you should consult with one or more experienced employment law attorneys. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

Neil Pedersen

Neil Pedersen

Posted

I have to agree with Mika here. Unless there are facts to suggest this employee engaged in some kind of protected conduct, or was terminated because he or she was a member of a protected class of people, I see no possibility that a wrongful termination action would be viable here. Good luck to you Asker.