Published on October 26th, 2012 by Alan L Sklover
Question: My husband has worked for his employer for 15+ years, progressively in management roles but in an at-will arrangement. He never had any negative reviews and was recently promoted in June. Last week he was abruptly terminated.
His employer told him he was being fired for theft of company property, which they stated they had on videotape. The “theft” was of a company cell phone (previously used, but not activated). My husband’s job was to routinely access cell phones for other employees whose own cell phones needed upgrading or replacement, among other things.
He had the phone in his work bag in his car, as he normally would have other company property as well. He was a manager, and this was a routine part of his job. He did not have an employment contract, but had a non-compete agreement.
I want him to hire an attorney because I think he has a case, but he is unsure. Please comment.
New Bedford, Massachusetts
Answer: Dear Annie: I am so sorry to hear of what has happened to your husband. Though I have only read your email note, it seems to me that your husband has been treated very unfairly, with potentially devastating consequences to his career and family. While I believe an attorney might be helpful, I am not sure it is the first thing I would recommend. Allow me to explain:
1. Being fired for theft is a very serious thing, with serious consequences, and requires a very serious response. In general, there are three main ways to lose a job: (i) bad performance, (ii) layoff or position elimination, or (iii) misconduct. Of the three, misconduct is the most damaging, because it ends up denying the employee (a) unemployment insurance benefits, (b) severance, (c) rights under the federal COBRA law, and (d) an explanation for job loss that permits a reasonable hope and expectation of rehire.
And of the various forms of employee misconduct, theft is one of the very worst, as it constitutes a criminal act, which calls into play other, serious concerns.
I’m sure your husband feels devastated by what has transpired. He is so fortunate to have you on his side.
2. Being fired for theft also denies the fired employee his or her most precious work-related interest: reputation. There are many sayings about reputation loss, but my favorite is a Yiddish one: “It takes a lifetime to make, and a moment to lose.” A person’s reputation – and especially his or her reputation for integrity – is a terrible thing to lose. Loss of good reputation can prevent future employment, future social affiliation, future community involvement, future political office, and even future friendships. I don’t mean to scare you, but would you consider using a doctor, a handyman or a babysitter who was fired for theft from his or her employer?
3. Bear in mind, too, that this allegation – if proven – could even deny your husband his freedom, that is, it could conceivably put him in jail. It is this sobering thought that must be considered first and foremost when deliberating over what may be best to do. If your husband has any doubt as to his intentions, and how they might be interpreted, then he might consider consulting an attorney who is experienced in representing criminal defendants. As noted below, I rather doubt that any criminal charge would be brought under these facts and circumstances, but I am not a criminal defense attorney, and I am not familiar with the law or courts where you live.
For great info and insight, consider viewing our 12-minute Sklover-On-Demand Video entitled “Allegations of Misconduct: How to Respond.” To do so, just [click here.]
4. My first suggestion is that – if your husband insists he had no intention of wrongdoing – your husband should consider writing a respectful letter to the CEO and possibly the Board of Directors laying out the facts. As our blog visitors know, I am a big fan of putting the truth in writing, and sending it to the “decision-makers.” Who knows? This just might solve the problem, and prevent the onset of “warfare” for which my noble legal profession has become infamous. If respectful and honest, specific and credible, such a letter can’t hurt, but can only help. In addition, it might save your husband the unnecessary expenditure of legal fees.
It is important, though, that this be carefully weighed against the possibility that criminal charges could be brought. In your husband’s case, since (a) we are speaking only of a cellphone, that is, a minor item, and (b) your husband seems to have a credible explanation, I rather doubt that criminal charges could be brought.
In preparing the letter, consider all of the facts, events, circumstances, witnesses, documents and other sources of support that are possibly available to support your husband’s perspective on what happened.
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5. It is possible that this allegation was brought against your husband as a “pretext,” that is, a false reason, in order to accomplish (a) a staff reduction without severance, (b) a staff reduction without unemployment insurance, (c) a staff reduction without lawsuits, (d) or even a retaliation or vendetta, all of which I have seen in recent times. Call me increasingly cynical and even paranoid, that is all right with me. But recently I have seen this sort of thing happen so often that it is both saddening and infuriating. Such bad faith as a reason for what has taken place is one thing to consider, because things don’t “just happen,” but they happen for a reason. Rather, such fraudulent behavior by employers – or dishonest individuals who work for employers – is seemingly on the rise.
In fact, Annie, from what you describe, it seems even probable that someone had an evil motive in blowing out of proportion what your husband innocently and honestly did. I sometimes compare these situations to “a paper clip found in a briefcase,” as an example of false and fraudulent firing, and your husband’s “cell phone in work bag” sounds eerily close to that.
If he objected to, resisted, complained of, or was involved in an investigation of wrongdoing by others during the past 12 months, what happened to your husband could also constitute the ever-growing phenomenon of retaliation.
P.S.: Want to send a Letter or Memo to your boss or HR, but feel unable or afraid to do so? We Can Provide a Non-Attorney Writer to Write Your Model Letter of Memo for You. Interested? Just [click here].
6. If the “self-help” letter I recommend above does not work, then and only then would I suggest your husband consider consulting an experienced employee-side employment attorney in your area for advice and counsel and, perhaps, representation. This is the sort of matter that requires a bit of “gray hair,” and by that I mean experience and judgment that is not too common among the “less experienced” in our society. As with any professional you “hire,” you need to feel comfortable and “cared for” to the extent reasonably possible before placing your fate into their hands.
There are several different legal theories that an experienced employment attorney might be able to use to obtain a favorable reconsideration, a settlement, or a lawsuit, if all else fails. For every “wrong,” the law has a potential way to make it “right.” That’s what you learn over time when you “practice” law.
I don’t often suggest consultation and/or representation by an attorney, but in cases like these I usually do, and strenuously. There is just too much at stake to walk away from, unless a seasoned professional tells you he or she really suggests that, and has good reason to do so.
If you would like to obtain a list of five (5) or more experienced employee-side employment attorneys in the Boston area, you can do so by simply [clicking here.]
As I noted above, Annie, I am sorry to hear of what has happened to your husband. It is one of the worst things that can happen at work. Thankfully, it is not as damaging as would be ill health or other irretrievable significant loss.
I wish your husband the best in standing up for himself, either by himself or with an attorney.
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