Accused of Theft!

[trixielexi]

What is the name of your state (only U.S. law)? California

Ok, so I'm posting on behalf of my boyfriend as he just went into work right now.

He works at a upscale country club as a waiter. This is his second year there. His boss and his co-workers are all familiar with him and know his character. Yesterday at the end of his shift, he was bussing some tables getting them ready for the dinner shift, and the last server to be serving a table left early, we'll call him Marco. Today, a man comes in that was seated in Marco's section and asks if he got the $100 dollar tip he left for him yesterday. Marco tells him he didn't, so the customer asks who else was working and he said my boyfriend, we'll call him Andy, was. The customer yells in Andy's face in front of the restaurant accusing him of stealing, etc. etc. Andy's boss James calmed him down and told him they'd get to the bottom of it, pulls Andy aside and tell him if he finds out he did it, he'll do anything he can to prosecute him. Now, I found this to be a little odd for a business owner to even think about saying to their employee as it's very hostile and I know from working at Walmart a supervisor was demoted for saying something similar to a stocker. None of his co workers are helping him serve tables and it's been very stressful, especially since he's innocent and we all know the "innocent before proven guilty" rule of thumb. Especially since also, the reason why Marco got the $100 dollar tip was because he kissed the customer on the cheek during service(which is obviously a big no-no and harassment issue. As well as the customer had at least 4 drinks so Andy thinks his memory might be fuzzy because there was absolutely no money on the table when he went to go clean it)

I told Andy to talk to James about how he feels and to document EVERYTHING that is being said and who is present. I told him to make sure he tells James that he should know his character and would hope he knows him by now that he'd never do anything like that (I know that doesn't necessarily mean they'll let up, but it couldn't hurt) and that having his co workers ignore him and leave him to a whole section alone is creating a very stressful and very hostile work environment for him. Andy's main concern is that his boss will fire him or his co workers will try and force him out. I told him his boss probably can't fire him and that it would be wrongful termination especially if they can't prove Andy did anything. I want to know exactly what he can do if either of those scenarios happens.

 

[OHRoadwarrior]

You have a misconception about wrongful termination. They can terminate him because they do not like his haircut. It is unlikely they have any evidence to press charges on the other hand.

 

[cbg]

First of all, the term, hostile work environment has a very specific meaning under the law, and what you have described does not meet it. Not even close.

Second, a wrongful termination does not mean that you were fired for something you didn't do; it means you were fired for a reason that is prohibited by law. The law does not prohibit an employer from firing an employee who is suspected of theft, EVEN IF THEY ARE MISTAKEN AND THE EMPLOYEE IS INNOCENT. Therefore no, this would not be a wrongful termination. "Innocent until proven guilty" is a precept he takes into court with him. It does NOT apply in employment.

If the first of the scenarios you present occurs, Andy can file for unemployment and look for a new job. If the second, he can either suck it up or quit, in which case he is unlikely to be able to get unemployment. In neither case will he have any recourse in a court of law.

Hopefully this will not happen, but you are very wrong about what he can and cannot be fired for.

 

[ShyCat]

I told him his boss probably can't fire him and that it would be wrongful termination especially if they can't prove Andy did anything. I want to know exactly what he can do if either of those scenarios happens.

Well, you are wrong on all counts. His boss CAN fire him (google "at will employment"). And it would not be a wrongful termination since it's not against the law to fire someone for being suspected of stealing even if the employee did not in fact steal anything. And the employer doesn't have to prove anything as he is not a court of law.

If your boyfriend is fired, he should file for unemployment and start looking for a new job.

 

[trixielexi]

First of all, the term, hostile work environment has a very specific meaning under the law, and what you have described does not meet it. Not even close.

Second, a wrongful termination does not mean that you were fired for something you didn't do; it means you were fired for a reason that is prohibited by law. The law does not prohibit an employer from firing an employee who is suspected of theft, EVEN IF THEY ARE MISTAKEN AND THE EMPLOYEE IS INNOCENT. Therefore no, this would not be a wrongful termination. "Innocent until proven guilty" is a precept he takes into court with him. It does NOT apply in employment.

If the first of the scenarios you present occurs, Andy can file for unemployment and look for a new job. If the second, he can either suck it up or quit, in which case he is unlikely to be able to get unemployment. In neither case will he have any recourse in a court of law.

Hopefully this will not happen, but you are very wrong about what he can and cannot be fired for.

I looked online to see more options and I've read that wrongful termination can consist of being fired under the guise of a false statement, so them saying he stole the money with absolutely no viable proof and that if he is pressured to quit or the working conditions were changed to be so horrible he can claim constructive discharge, or dismissal if his level of responsibility is reduced. Also for insufficient cause.

I just want a little more advice on how to go about this if he does get fired or is pressured to quit, because we will take action if it does happen.

 

[cbg]

You're taking that statement out of context. But if you have to incur a few lawyers' fees to establish that he CAN be legally fired for suspicion of theft whether he did it or not, that's no skin off my nose. I get paid the same (i.e., I don't get paid) whether you believe what I tell you or not.

 

[swalsh411]

An employer is not a court of law. They are not required to give an employee a fair trial prior to firing then, nor are they barred from terminating an employee based on mere accusation of misconduct.

You will find no legal support for your theory that an employee cannot be fired based upon mere accusation of theft.

 

[commentator]

You are in a "at will" state. This means that the employer can terminate at will. If they want to make up a story that your boyfriend stole money and fire him for that, they can do it, legally. You won't get an attorney to tell you any different. The only thing that will give him any recourse or chance to explain how unrighteous his firing has been is when he files for unemployment insurance, and says he was fired for stealing money he did not steal. His employer, to keep him from being approved for unemployment benefits, which will cost them money in tax rates, will have to present their proof that they did have a valid, misconduct reason to terminate him.

The employer will present any evidence, any proof that the theft occurred. your boyfriend will counter with his side of the situation. They assume either or both parties may be lying. They will decide in favor of the "more believable" party. The other party will have the right to appeal the first decision. If he is approved, your boyfriend will be able to draw unemployment benefits while he is looking for another job. That's as good as it can get for him.

If the employer thinks he is guilty, he has the option of pressing charges against your boyfriend for theft. If he does that, it is a matter completely separate from labor laws or from unemployment insurance issues.

I'm not sure that he'll be fired, from the sound of things. It may just be that the employer was throwing a big show for a customer. If the guy is tipping that big, I bet he's a prime customer and the employer will be very concilliatory. The one thing that the employer is not required to be, as far as labor laws are concerned, is fair and reasonable in his treatment of employees. He does not have to "give them their rights" or believe they are innocent until proven guilty or anything else of this sort, as someone said, it's not a court of law. He just has to pay them for the hours they work, pretty much. And if they're fired without a good reason, the employee can usually receive unemployment benefits.