False Accusation at Work

[lpg0121]

What is the name of your state (only U.S. law)? TEXAS
Last week a female employee who is a cashier at my store, was terminated because she was caught taking money from her till. The day the camera caught her on video, I was bagging her customer's groceries and my back was turned to her, the cashier. The video clearly shows my back turned to her while she took the money from her till. Several days after the incident, she was asked to come in to work by Loss Prevention (who had reviewed the video tapes) and sign a form in which she agreed to pay back the money she had taken and they would not pursue charges against her. Unbenounced to me, she also signed a form accusing ME of having knowledge and involvement of her actions (which I knew nothing about until now). Today, after being OFF for several days, I returned to work to make up some lost time and my assistant manager tells me I have a phone call from Loss Prevention and to take it in the back office. This is when Loss Prevention tells me what I was being accused of and that I'm being suspended for four days without pay. I left the store without anything in writing but returned later to speak to my manager. I requested my suspencion notice in writing and after speaking to my manager further, he said I would only be suspended for one day,....today (my scheduled day off) and that I could return to work tomorrow Friday. When I requested that he consider taking the suspencion off my personnel file since the accusations are obviously false, he refused. What can I do legally since the accusations against me are false?

 

[Ohiogal]

Prove that they are false. The fact that your back was to her is not proof that you did not knwo what she was doing.

 

[quincy]

First, being falsely accused of theft, or complicity in a theft, is defamatory. You do not need to prove the falsity of any accusation against you - your accuser has to prove its truth.

Any legal action taken would be against the employee/cashier who falsely accused you of being involved with the theft. You should consult with a lawyer and review the facts of your situation, to see if pursuing a defamation suit against the cashier would be worthwhile.

If you have been unjustly punished and/or lost any income due to her false accusations, or if you believe that having false allegations about you in your file may affect your future with the company or any future employment (and it could), you may want to consider it.

You were right to ask that your employer remove the allegations from your file, and you should request this again. If the information in your file states that you were accused by a fellow employee of complicity in a theft, and that you were suspended for your assumed role in the theft, this implies your guilt. If Loss Mitigation did not investigate the claims, or if their investigation did not find any proof of your involvement, what is contained in your file is reputationally injurious.

Again, see an attorney about filing suit against the employee who falsely accused you of involvement in her crime.

 

[lovey72]

i know this is totally off subject, but, i have a question myself. i was working @ a restaurant which caters to lawyers and judges. i am not claiming to be innocent but i am not the same person i was when i was younger. i had some run ins w/the police therefore the judges, lawyers knew who i was. i worked three days & on the fourth day(must say i was on time & did as i was asked to do)the boss met me outside & told me that he was gonna have to let me go because he was told i done drugs. i, of course, told him yeah i use to in my younger years but that i had been clean for several years now & asked him to give me a drug test right then. he said that wouldnt be necessary. do i have some sort of case?

 

[Tallrat]

Quincy I may have to move to Michigan if I need a lawyer, Great answer (once again)

 

[quincy]

Thanks, Tallrat. I try my best.

Lovey72, you are right that your question is off the topic of the original post here, and you should have started your own thread for this reason, but I will answer your question here anyway - just because.

I do not see that you have any legal action that you can pursue that would have any chance of success. An employer in most cases can terminate an employee's employment for any reason at all (and even for no reason at all). The fact that he let you go, therefore, was not illegal.

Although it is possible, and sounds probable, that the attorneys and judges who frequented the restaurant where you worked may have mentioned to your employer that you at one time were before them in court on drug charges, what they said would be the truth. The truth, as embarrassing or as damaging as it may be, is not defamatory.

If you had any drug problems, run-ins with the police, or convictions in your youth, it would probably have been wise for you to have reported this on your employment application, so your employer would not have had this information sprung on him unexpectedly. Being honest about youthful indiscretions and criminal acts is ALWAYS a lot better than being found to have omitted such information on an application or lied about past misdemeanors.

Kids can be stupid but most, fortunately, grow out of their stupidity. Employers generally take this into account in their hiring decisions.


Edit to add an additional note: It would be considered unethical and a violation of both the Judicial Code of Ethics and the attorney Code for judges and attorneys to discuss socially a case that is pending before them in court - or a case that was before them where appeals have not already been exhausted. It is not a violation for attorneys and judges to discuss socially cases that were before them that have already been concluded.

 

[Indiana Filer]

i know this is totally off subject, but, i have a question myself.

Lovey,

You need to delete this post, and start a thread of your own with your question.

 

[quincy]

And instead of titling it "False Accusation at Work," Lovey could title it "True Accusation at Work," perhaps?

Why would Lovey want to repost his question, Indiana? Do YOU see any possible legal action he could pursue that would be worthy of a repost. . . . ?

 

[cbg]

Getting back to the OP:

I don't disagree with anything Quincy said but I do want to bring to everyone's attention the law regarding personnel files.

In some states, including both Quincy's and mine, the employee has a guaranteed right to see what is in their personnel file and to place a rebuttal in the file if there is anything with which the employee does not agree, and he and the employer are unable to come to an agreement on the matter.

However, that state of affairs does not exist in the OP's state of Texas. In Texas, the employer gets to decide whether or not the employee is allowed to see the file at all, and the employee has no right under the law to include a rebuttal, let alone *demand* (as opposed to request) the removal of any items.

I am not saying don't ask. I am saying that in Texas, and in many other states as well (Quincy's and my states are in the minority) it would take a subpoena to get a look at the personnel file unless the employer CHOOSES to allow the employee to see it, and a court order to either remove the offending items or for the employee to put in their rebuttal, again unless the employer chooses otherwise.

 

[Ronin]

First, being falsely accused of theft, or complicity in a theft, is defamatory. You do not need to prove the falsity of any accusation against you - your accuser has to prove its truth.

I believe that in Texas falsity is only presumed in defamation cases where plaintiff and defendant are private persons and the issues are private matters.

In the context of this case, a cashier accusing her coworker of complicity in theft does not necessarily have the burden of proving the truthfulness of her statements in a defamation action.

Although OP stated his back was turned while the cameras caught the theft, this does not in and of itself prove his innocence, or that he did not have knowlege or complicity with regard to the cashiers theft. A lot would depend upon exactly what the cashier alleged regarding the extent of OP's knowlege or involvement in this matter.

 

[quincy]

Neither the cashier nor the bagger are public figures, Ronin, and the theft is a private, not a public, matter.

In Texas, there are three types of public figures - public official (think Mayor or Governor or Senator), all-purpose public figure (think Julia Roberts or George Bush), and limited public figure (a private individual thrust into or thrusting himself into the public eye by way of a matter of public interest). Private figures are everyone else, like the cashier and our poster here - individuals generally unknown outside their own little private sphere of friends and family and co-workers and acquaintances.

The difference between a public figure and a private figure in a defamation action is the standard of fault that must be proved by the plaintiff. For a public figure plaintiff, the plaintiff must show that the defamatory statement was made with actual malice - a high standard of proof going to the intent of the publisher of the statement (knowing the statement was false, or publishing with a reckless disregard for its truth or falsity). For a private figure plaintiff, it would only be necessary to show that the statements were made with negligence, a lower standard of proof (the reasonable person standard). It is the actual malice standard that makes it so difficult for public figures to win defamation actions.

All of the other elements of defamation in both public figure and private figure cases, however (that a statement was made about the plaintiff by the defendant and it was defamatory and reputational injury resulted), are the same.

Texas recognizes defamation per se, which means there does not have to be proof of reputational injury when there is a false accusation of a crime. Reputational injury is presumed when a statement is defamatory per se, and damages can be awarded on this presumed injury. Presumed reputational injury applies to defamatory per se comments made about both public and private individuals.

It would not be up to lpg0121, a private figure, to prove he did not have complicity in the theft. He only needs to show that a statement was made about him by the cashier, it was defamatory, he suffered reputational injury, and there was negligence on her part in the making of the statement. It is up to the cashier to prove otherwise in her defense of her statement - and if she wants to use truth as a defense, she would need to show his complicity in the theft.

 

[Ronin]

Thanks, Quincy. I can always count on a well reasoned argument from you.

However, in this case, whether such statements are defamatory depends upon the context in which they were made. This being whether the statements were limited to an investigation of theft, or whether they were made to anyone outside the scope of such an investigation. In this case the statements were apparently limited to the investigation.

If the cashier had been arrested and interrogated by the police, and she implicated her coworker by making statements to the effect her coworker was aware of her actions, and that he had agreed to split the money, such statements would not be actionable as defamation per se.

 

[quincy]

Geez, Ronin. You are making me work. Sure wish the pay here were better.

Before I reply to your post, it is probably important to point out that in any lawsuit there will be two sides, each of which will have access to all of the facts and the ability to view the video and interview those involved. While I can come up with good arguments why a defamation action could be winnable in lpg's case based on his post, there is a possibility that an attorney for the cashier could come up with good arguments to prevent such a win based on facts that are unavailable here. . . . although I doubt that any attorney's arguments could be better than mine.

When there is a private figure plaintiff, when the defendant is not the media, and when the defamatory statement does not concern a matter of public interest, the falsity of the statement is generally presumed under common law. The truth of a statement must be proved by a defendant if truth is to be used as an affirmative defense.

In the absense of privilege, malice can be inferred from the fact that the statement is false, based on Texas caselaw - G.N.R. Co v Edmundson, 1920. When a statement is privileged, however, then it becomes the plaintiff's burden to establish actual malice.

In cases of absolute privilege, defamatory statements cannot lead to a defamation action. The speaker is immune from such prosecution. Absolute privilege is confined to very few and very specific situations where free expression is essential and fear of prosecution would inhibit speech (ie. judicial, legislative and executive proceedings). Although defamation actions cannot arise from statements made in these situations, defamatory lies in court can still result in contempt of court or perjury charges.

Then there are qualified or conditional privileges, and these privileges can be abused when a speaker knows that the statement made is false and publishes it anyway, for an improper purpose. With qualified privilege, the speaker is immune from a defamation action only when the privilege is properly exercised.

Qualified privilege exists when a person has a duty to communicate - as is the case with reports made to Child Protective Services or the police. The statements made MUST be made in good faith with good motives and a honest belief in their truth, absent all malice, for the privilege to hold. A person who knowingly files a false CPS or police report can be held criminally liable.

For a long time, employers have relied on a privilege known as an "intracorporate communication privilege" to avoid defamation actions. It was a "what is said in the workplace stays in the workplace" privilege, with the argument that nothing said in the "corporate" environment was published to a "third party." Without third party publication, a defamation action fails.

In a Texas employment situation, however, the intracorporate communication privilege has been rejected by Texas caselaw (and is rejected as a privilege in the Restatement (Second) of Torts and is being rejected in many other states in the country now). Communication within a corporation environment is being considered publication for the purposes of a defamation action - this based on the knowledge that damage to one's reputation within a workplace can be as injurious as it is outside the workplace.

Texas uses qualified privilege in employment settings instead, to preserve the defamation remedies available to employees whose reputations have been injured, while at the same time protecting employees who report on the wrongdoings of other employees and while protecting employers from unwarranted defamation liability when investigating "reasonably credible allegations of dishonesty by their employees" (Randall's Food Markets Inc v Johnson, 1995).

The qualified privilege can be lost if statements made by an employee in the course of an employer-instigated investigation are false. In Texas Farm Bureau v Sears (Tex App. Waco, 2001), it stated that an employer owes a duty of care to employees when conducting an investigation. An employer should not say or write anything about an employee that cannot be proven with reliable documentation or reliable firsthand testimony. An employee caught committing a crime, with video evidence to support the fact, is not a reliable witness, as her sole purpose could be to deflect blame. She has reason to lie or, at least, no reason to tell the truth.

An employer needs to be careful when investigating an employee and not take unwarranted action against him, as an employee has a right not to be accused wrongly of a crime. There is definitely a delicate balance between an employer's rights and an employee's rights when a criminal act is involved. In the situation posted here, the employer is basing disciplinary action on questionnable testimony from a person known to have committed a theft, and a video that seems to refute the testimony that our poster here was involved.

Any defamation action lpg could consider, though, would be against the cashier. The Texas Labor Code offers protection to employers who act against an employee based on information provided the employer, when the employer does not know that the information acted upon is false. This protection could be lost if lpg's employer passes on any unproven allegations to lpg's future employers or to others, however.

In Ramos v Henry C Beck Co (Tex App 1986), the court said that "if a statement [published] unambiguously and falsely imputes criminal conduct to Plaintiff, the statement is defamation per se" and, in the situation here with an accusation of complicity in a theft which is defamatory per se and presumes injury, lpg could be awarded damages for this presumed reputational injury.