Termination for Theft with Implied Contract (Associate Handbook)

[MSCMAV]

What is the name of your state (only U.S. law)? Colorado
Hey, I'd really appreciate some advice and perhaps some knowledge on this subject matter. I'm a bartender at a hotel and several weeks ago we had a financial control audit. The auditor originally order a ****tail and some food with me and payed cash. After some time, he ended up ordering another beer and payed cash for this as well. When the results from the audit came in, I thought all was fine. However, yesterday, at the beginning of my shift I was called in and asked to discuss a discrepancy on the second ticket. The auditor had said that they ordered the beer at time X (let's say 7:18) however, the ticket that I gave him said time Y (7:08), ten minutes before he supposedly ordered the drink. They haven't accused me of anything yet, but have suspended me pending termination. What they think I was doing was ten minutes before the auditor order his beer, someone else ordered the same brand of beer and paid cash. I left the ticket open on the registered and pocketed the money from that transaction. So then when the auditor order his beer, I just closed out the ticket for his transaction. I've brought up to them several reasons why their might be a discrepancy in the time. I'm just preparing for the worst case scenario when I go back in and talk with them when my suspension is over. I do have an implied contract with them in form of an associate handbook that states they must do a progressive discipline, however, there are cases where immediate termination is valid. One of these cases is "theft or attempted theft". I did not steal anything from this company that I've been with for a number of years (8+) and am curious on any ones thoughts of what I should be doing? I'm thinking if they let me go and call it theft or attempted theft, I might have possible legal recourse. Or, if they let me go and say I did not follow procedure, that I would also have recourse as they did not follow the contract and progressively discipline me. Also, if they decide to keep me, what are my options? Can i recover lost wages? Defamation of character if they say I stole? Any advice knowledge would be greatly appreciated!
Thanks!

 

[Proserpina]

What is the name of your state (only U.S. law)? Colorado
Hey, I'd really appreciate some advice and perhaps some knowledge on this subject matter. I'm a bartender at a hotel and several weeks ago we had a financial control audit. The auditor originally order a ****tail and some food with me and payed cash. After some time, he ended up ordering another beer and payed cash for this as well. When the results from the audit came in, I thought all was fine. However, yesterday, at the beginning of my shift I was called in and asked to discuss a discrepancy on the second ticket. The auditor had said that they ordered the beer at time X (let's say 7:18) however, the ticket that I gave him said time Y (7:08), ten minutes before he supposedly ordered the drink. They haven't accused me of anything yet, but have suspended me pending termination. What they think I was doing was ten minutes before the auditor order his beer, someone else ordered the same brand of beer and paid cash. I left the ticket open on the registered and pocketed the money from that transaction. So then when the auditor order his beer, I just closed out the ticket for his transaction. I've brought up to them several reasons why their might be a discrepancy in the time. I'm just preparing for the worst case scenario when I go back in and talk with them when my suspension is over. I do have an implied contract with them in form of an associate handbook that states they must do a progressive discipline, however, there are cases where immediate termination is valid. One of these cases is "theft or attempted theft". I did not steal anything from this company that I've been with for a number of years (8+) and am curious on any ones thoughts of what I should be doing? I'm thinking if they let me go and call it theft or attempted theft, I might have possible legal recourse. Or, if they let me go and say I did not follow procedure, that I would also have recourse as they did not follow the contract and progressively discipline me. Also, if they decide to keep me, what are my options? Can i recover lost wages? Defamation of character if they say I stole? Any advice knowledge would be greatly appreciated!
Thanks!

There was a discrepancy between what you said and what the ticket said, yes?

If that's the case, implied contract or not, you may find yourself out of a job (and legitimately).

 

[MSCMAV]

No, the issue is the auditor is saying he ordered the drink at time X while the ticket says he ordered the drink at time Y.

 

[LdiJ]

No, the issue is the auditor is saying he ordered the drink at time X while the ticket says he ordered the drink at time Y.

Well, one of three things is going on here....

Either the auditor made a mistake and its a fairly trivial matter that would seem absurd to fire someone about, OR

It was a "sting". The hotel management believed that stealing was going on and the auditor ordered the drink with the specific intent to attempt to catch you stealing, OR

The auditor made up the problem to attempt to make himself look like he caught someone stealing.

I don't see how anyone is going to be able to prove anything one way or another. However, they don't need proof to fire you.

 

[commentator]

Some bad news. Yes, they can legally fire you, without warnings or write ups. Because if you did steal, or if they maintain you stole by pocketing the cash for the first drink, or however you did it, they can fire you for "gross misconduct" which is defined as something so bad that you should have known it was wrong to do it, even without a warning, even one time. Stealing is considered one of those gross misconduct things.

A company is not even obligated to follow their own handbook or "implied contract" in doing this. It is an "at will" state, and they can terminate you at any time, for just about any reason and you have no legal recourse. You can't sue them for unlawful or wrongful termination or defamation of character or any of the things you brought up. There is none of that going on here, even if you are innocent as the baby's breath and they do actually fire you for stealing.

The place you would get to do "do they have proof?" and deal with the issue of whether or not you actually stole anything would be when you file for unemployment insurance after having been fired. In order to fire you and keep you from being able to receive unemployment benefits after they have done so, the company has the burden of proof to show they had a valid misconduct reason to terminate you.

Gross misconduct, stealing, and being caught by the auditor would be their reason to terminate. Then there would be a fact finding, and then later a formal agency hearing, in which you would show the evidence that you did not steal, and they would show the evidence that they have that led them to believe that you did, and a decision would be made as to whether they had that valid misconduct reason to terminate you, in other words whether you were approved to draw unemployment while looking for another job.

This is apart from whether or not they actually choose to press charges for theft against you in the legal system. The unemployment system will look at the evidence and decide which argument, yours that you didn't do it or theirs that you did, is the most believable. They'll look at whatever evidence they have, listen to whatever arguments that you make that you didn't do it. Usually, in my experience, it's pretty hard to prove a negative, in other words, "I just didn't do it because I say I didn't!"

Frankly, I agree with above poster, it sounds like they'd had something going on, they decided to do a sting, and they think they have caught somebody. Maybe so, maybe not. Either way, they can legally fire you, just because they think you might be stealing. Or because they don't like your attitude. Or your sock color. Or because they want to be perceived as having dealt with the situation.

If they leave you on unpaid leave for more than a few days, less than a week, file for unemployment, assuming you are fired. If they call you in, say "We know you are stealing, but if you elect to sign this paper and say you resign instead of us firing you, we won't hurt your references," I would advise you not to do this, because if you quit the job because you were accused of stealing, you have very little chance of being approved for unemployment benefits, and they know it.

If you do get approved to draw, it will hurt the business' tax rate, in other words, cost them money. And it is entirely possible they will let you quit, with no unemployment coming, and then still not give you a good reference. Your decision here.

 

[MSCMAV]

Thanks for your advice! I really appreciate your time.