I suspected an employee was stealing so I put up a small hidden camera in the office. The video shows the thief trying to open the safe, then going through the office desk. You can't see her face, but its easy to determine who she is, yet a jury would not be able to identify her from the tape. So nothing stolen, no face shot in the frame, but its enough to know who's been stealing. What should my next step be?
If this employee is an at will employee, which means she is not employed for a specific period of time or she cannot according to her employment agreement be terminated unless there is "cause" or "good cause" or specified reasons, then she can be terminated for any reason or no reason as long as it is not an unlawful reason. Most employers think they need strong evidence of employee misconduct to fire them. Not necessarily true. However, it is helpful to have the evidence if any later actions occur.
First, be sure there is nothing this employee has recently done that would appear to be whistleblowing, i.e., reporting suspected wrongdoing to an outside agency, or internally if related to a matter of public concern. If so, you can terminate this employee, but be prepared for a possible claim of retaliation. Your evidence will be helpful if that occurs.
Second, be sure that there is no evidence that this termination was motivated by the fact that this employee is a member of a protected class of people (i.e., race, gender, age, disabled status, etc.) If so, again, you can terminate her but you should be prepared to address a discrimination claim upon termination.
Third, be sure to have her final paycheck which includes any vacation time or other vested paid time off, plus any expenses owed to her, at the time you terminate her. If you do not present it to her at the time of her termination, you can be liable for up to a month of waiting time penalties.
Fourth, terminate her. Inform her that she is being terminated for misconduct in the workplace. You are not required to go even that far, but because you will be required to prove misconduct to avoid responsibility for increased charges related to her unemployment benefits, it would be appropriate to do so now.
As to the tape, I think there are two sides to that coin. Some would say to reveal it to her, perhaps even play the video for her. The purpose would be to show objective evidence of misconduct in the workplace. Others would suggest to hold back on the tape because it does not clearly show her as a perpetrator and by not revealing the recording you avoid any entanglements related to invasion of privacy claims.
Do NOT accuse this employee of stealing. If you do state anything other than "workplace misconduct" state the basis for this conclusion as unauthorized access to the safe and the office desk (assuming this employee was unauthorized to have such access).
An alternative approach is simply to terminate the employee without explanation. A statement like "we will not longer require your services" and "as an at will employer we have simply decided to terminate you." Eventually you may be required to address the misconduct issue either in the EDD related to unemployment benefits, or as a defense if the employee brings a claim of wrongful termination.
Any employer should have an employment law attorney on speed dial for issues like this that comes up. I would like to encourage you to find an experienced attorney in your area and bring this issue to that person. In the long run, the money will be worth it in peace of mind and judgments and settlements created by errors in process or judgment.
Good luck to you.
Agavni Gina HogtanianEmployment / Labor AttorneyGlendale, CA ·
You need to have a confidential consultation with an employment attorney in San Francisco, during which more details can be discussed. Are you quite certain you have the right person? You state "nothing stolen, no face shot in the frame ... a jury would not be able to identify her from the tape ... but it's enough to know who's been stealing." Is it possible someone else was involved in the prior incidents? Is the employee you suspect an otherwise competent and high-performing employee?
Although an employer in California may generally terminate the employment relationship at will (with some exceptions, such as a contract to terminate for good cause only, or some public entity employers, or union/collective bargaining agreements providing otherwise, and others which are not triggered by what you state) - it would be a shame to terminate the wrong employee. "At-will employment" means that the employer or employee may terminate the employment relationship for any reason or no reason being provided at all. Even where there is a contract to terminate for good cause only, generally speaking, commission of a crime, such as theft, would provide good cause for termination, although again, employment cases are very fact-specific, and you will need to have a detailed confidential consultation about your particular case with an employment attorney. A public forum like this one does not permit elaboration of sensitive issues.
While I am not licensed in California, I generally agree with the responses of the other attorneys. However, I would simplify the response by simply stating that if the employee is an at will employee and no state law exceptions apply, you have the right to terminate for any reason or no reason. When terminating, I would have a witness present and simply advise the employee that "things are not working out". You are not obligated to provide a reason and many employers who do provide a reason regret it for various reasons. I would also say that you should steer clear of any accusations of criminal conduct as even if true and if you can prove it, there is no reason to make the accusation and potentially "buy" yourself a lawsuit.
