• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

proof of "willful misconduct"

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

S

selectme

Junior Member
What is the name of your state (only U.S. law)? pa

We are self employed and "laid off" an employee that we suspected has been taking copper off our job sites and obtaining cash from a scrapyard. We have had fellow employees and a customer tell of "fishy" behavior and the scrapyard suggested calling the police due to the amount of cash and activity done by this employee. The dates and times of the day given verbally to us by the scrapyard is during work hours. We also had issues with his company paid for cell phone use that we talked to him about but still was an issue. (excessive time on the phone during work hours) Our issue is proof and whether or not to contact the police and whether or not his behavior would qualify for "willful misconduct" due to the visits to the scrapyard during work hours. In addition we learned of an important exclusion on his application of a previous employer as well as a few other minor mistruths along the way....
 
Last edited:


E

ecmst12

Senior Member
Suspicion of theft with no proof....probably not.

The cell phone thing....maybe. It will be up to the UC board in the end.
 
S

selectme

Junior Member
ecmst12 said:
Suspicion of theft with no proof....probably not.

The cell phone thing....maybe. It will be up to the UC board in the end.
Click to expand...
Does cell phone misuse need to be in writing as a company policy in order for it to be considered "willful misconduct"? (in other words spelled out in our handbook as to what is acceptable use and misuse). We were hoping if we were able to obtain one receipt showing he went to the scrapyard during work hours and pursue that as proof of the same. Thanks for your help......

I also wanted to add that the amount that the scrapyard told us was cashed in during his employment with us was a large amount....we would like restitution as well so we are working on the proof....
 
Last edited:
quincy

quincy

Senior Member
Without any prior discussion about and/or knowledge of what is considered acceptable and unacceptable uses of company cell phones during working hours, it would not be willful misconduct for an employee to make use of a company cell phone during working hours, whether the use was company-related or otherwise. Having acceptable and unacceptable uses of a company cell phone spelled out in your company handbook would certainly help to avoid any problems with employee misuse of the cell phones in the future.

You must be extremely careful about stating or implying to others that this employee was involved in any theft. Without proof of his theft, this employee could sue you for defamation. Once you have obtained sufficient evidence supporting your claims that he stole from the scrapyard, then you could file a police report. In the meantime, however, be careful what you say and to whom you say it.
 
B

Beth3

Senior Member
Without any prior discussion about and/or knowledge of what is considered acceptable and unacceptable uses of company cell phones during working hours, it would not be willful misconduct for an employee to make use of a company cell phone during working hours, whether the use was company-related or otherwise. Having acceptable and unacceptable uses of a company cell phone spelled out in your company handbook would certainly help to avoid any problems with employee misuse of the cell phones in the future.

Not necessarily. It depends on what the UC division considers to be "reasonable" even in the absence of a written policy and whether the employee was talked to or disciplined about his excessive cell phone use during work time.

You must be extremely careful about stating or implying to others that this employee was involved in any theft. Without proof of his theft, this employee could sue you for defamation. Once you have obtained sufficient evidence supporting your claims that he stole from the scrapyard, then you could file a police report. In the meantime, however, be careful what you say and to whom you say it.

The employer doesn't have to obtain evidence in order to file a criminal complaint with the police. It's their job to investigate and determine whether a crime has been committed. Of course if the employer has evidence to turn over, that will make their job easier. Informing law enforcement of a reasonably suspected crime is not defamation.
 
quincy

quincy

Senior Member
Correct. It would depend on prior knowledge of what are acceptable and unacceptable uses. I think that is what I said.

Correct. Informing the police of a crime, and even providing the police with a possible suspect, would not be defamation. Telling others or implying to others, however, that this employee stole copper from the scrapyard IS defamatory, unless there is proof that the employee stole the copper. I think that is what I said.
 
E

ecmst12

Senior Member
It is not defamatory to say the employee was fired for SUSPICION of theft, because that is the truth.
 
S

selectme

Junior Member
ecmst12 said:
It is not defamatory to say the employee was fired for SUSPICION of theft, because that is the truth.
Click to expand...
We told him that we were not accusing but said there was a suspicion. We need the polices help in helping us proove our suspicions but the one police officer we went to needed us to provide the proof before they (meaning the police) provided their assistance. I think we will try another officer, maybe he was having a bad day. I didn't think that we would have to walk in with proof but that the police would help us obtain proof. Thanks for the replies by the way, they are helpful.
 
Last edited:
quincy

quincy

Senior Member
Ecmst, it would certainly be the truth if the employer were to say that the employee was laid off on suspicion of theft.

However, telling others that the employee was laid off on suspicion of theft does not prevent the employee from filing a defamation action against the employer. Being called a thief and being called a suspect in a theft can both be defamatory, as such statements are reputationally injurious and call into question the moral character of the person so accused.

Should the employee file a defamation suit, it would be up to the employer to provide a defense to any statements he made about the employee to others. The burden of proof falls on the employer.

Saying that the employee was laid off because he was suspected of theft, while a true statement, is NOT a defense to defamation. The defamatory statement is being called, considered, accused of, and/or laid off for being a thief or a suspected thief in the first place.

The employer must demonstrate to a court good reason for his belief that the employee was a thief (therefore a suspect), and why the employer chose to tell others of his suspicion. The wise employer either has sufficient evidence to support a reasonable belief in the guilt of the employee before the employer says anything to anyone, or he says nothing.

An employer can fire someone, or lay them off, and base such an action on a suspicion of theft. That is legitimate and there is nothing illegal about that. But the employer should have supportive evidence of why the employee was a suspect before this suspicion is repeated to others.

Generally, I would say, most employers in a like-case, would have enough supportive evidence to prevent any defamation action from, first, being filed, or second, from being successful. I assume most employers will not fire an employee on baseless and unfounded suspicions only and then repeat these baseless and unfounded suspicions to others. It could be legally dangerous to do so, certainly, when providing references to the employee's prospective future employers. The loss of any potential job by the employee, based on false or misleading information, or on unfounded suspicions of crimes - when no police report has been made and no charges filed - demonstrates all of the reputational injury an employee would need for a defamation action.

I am not saying here that the employee would win any defamation action in this case, especially if the employer is careful about what he says to others. If the employer states, or has stated, at any time to anyone other than the police, however, that the employee stole copper or is suspected of stealing copper, the employer has opened himself up to a defamation action he could potentially lose.

Bottom line:
The employee could sue for defamation. The employer should be careful what he says to anyone about the employee and his reasons for dismissal. And the employer would be wise to file a police report about the copper theft.

If the police find evidence enough to arrest the employee and charge him with theft, then the employer can safely say to anyone that the employee is suspected of theft and has been charged with theft. Perhaps later the employer can, with luck, say the employee was convicted of theft.

And, yes, selectme, you should find a police officer willing to take your theft report.
 
S

selectme

Junior Member
quincy said:
Ecmst, it would certainly be the truth if the employer were to say that the employee was laid off on suspicion of theft.

However, telling others that the employee was laid off on suspicion of theft does not prevent the employee from filing a defamation action against the employer. Being called a thief and being called a suspect in a theft can both be defamatory, as such statements are reputationally injurious and call into question the moral character of the person so accused.

Should the employee file a defamation suit, it would be up to the employer to provide a defense to any statements he made about the employee to others. The burden of proof falls on the employer.

Saying that the employee was laid off because he was suspected of theft, while a true statement, is NOT a defense to defamation. The defamatory statement is being called, considered, accused of, and/or laid off for being a thief or a suspected thief in the first place.

The employer must demonstrate to a court good reason for his belief that the employee was a thief (therefore a suspect), and why the employer chose to tell others of his suspicion. The wise employer either has sufficient evidence to support a reasonable belief in the guilt of the employee before the employer says anything to anyone, or he says nothing.

An employer can fire someone, or lay them off, and base such an action on a suspicion of theft. That is legitimate and there is nothing illegal about that. But the employer should have supportive evidence of why the employee was a suspect before this suspicion is repeated to others.

Generally, I would say, most employers in a like-case, would have enough supportive evidence to prevent any defamation action from, first, being filed, or second, from being successful. I assume most employers will not fire an employee on baseless and unfounded suspicions only and then repeat these baseless and unfounded suspicions to others. It could be legally dangerous to do so, certainly, when providing references to the employee's prospective future employers. The loss of any potential job by the employee, based on false or misleading information, or on unfounded suspicions of crimes - when no police report has been made and no charges filed - demonstrates all of the reputational injury an employee would need for a defamation action.

I am not saying here that the employee would win any defamation action in this case, especially if the employer is careful about what he says to others. If the employer states, or has stated, at any time to anyone other than the police, however, that the employee stole copper or is suspected of stealing copper, the employer has opened himself up to a defamation action he could potentially lose.

Bottom line:
The employee could sue for defamation. The employer should be careful what he says to anyone about the employee and his reasons for dismissal. And the employer would be wise to file a police report about the copper theft.

If the police find evidence enough to arrest the employee and charge him with theft, then the employer can safely say to anyone that the employee is suspected of theft and has been charged with theft. Perhaps later the employer can, with luck, say the employee was convicted of theft.

And, yes, selectme, you should find a police officer willing to take your theft report.
Click to expand...
Thanks for the clarification.....one thing I just want to clarify was that no one was told about why this employee is "laid off" . Another employee did come to us before hand and told us of some extremely suspicious activity and a customer when he heard he was no longer working came up to us and mentioned a few things (wish they said something sooner). So the employee who came to us originally, I am sure has his suspicions however as to why.... But the primary reason given to the employee was NOT the copper, it was the phone use which he was spoken to about previously, and a few other issues and mistruths. The copper was brought up because we needed to ask questions regarding his suspicious activity and get his side of the activity. We then said we are not accusing at this point of anything, just but that we are going to investigate. We did not say to him, "we suspect you of stealing," but listing him as either a "lay off" or "terminate" we wanted to investigate any suspicions first. In the conversation it was implied because we brought up our questions of his activity to get a response from him. Thanks, I just wanted to clarify that the suspicion was not primary in our discussion. The amount of money told to us that he has taken to the scrapyard is excessive and goes back into a previous employer with the dates given to us, so if the police become involved I am assuming it will involve the previous employer as well.Thanks again, I really do appreciate your time.
 
You must log in or register to reply here.

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top