Larceny or Lunacy–Part 2
When he looked inside, he saw about a four-months' supply of undelivered customer samples crammed in every available corner. "I think I'm beginning to understand why he didn't want me around," Doug murmured and unobtrusively closed the trunk.
The police cited Kashra for reckless driving. Since the car was still operable, the police allowed Doug to drive Kashra home. Doug said nothing to Kashra about the undelivered samples in his trunk. When Doug pulled the car up to Kashra's house, he stopped in front of a two-car garage and opened the door with the remote attached to the visor. There in the right bay of the garage Doug saw boxes of company samples stacked from floor to ceiling.
Kashra said nothing. He meekly opened the car door and walked quietly into his house. Doug immediately called the district office from the car phone. He asked for security to come to Kashra's home so they could document the samples, take pictures, and remove the items from the premises.
A full internal investigation followed, and security learned from Kashra's customers that his samples were never delivered. Security also discovered that Kashra attempted to form alliances with salesmen from other territories. He offered to buy some of their samples in return for a cut of the profits he made from selling the product directly. Through his connections, Kashra could obtain triple the retail price on the street.
The human resources manager coordinated with security, legal counsel, and public relations. They decided against filing criminal charges. If the public were aware that one of their employees was selling their product illegally, it could tarnish their public image. Instead, they chose to end Kashra's employment for poor performance and unauthorized use of company property. Kashra showed extreme remorse for his behavior and told them he appreciated that they didn't file criminal charges.
Kashra's appreciation was short-lived. He took his case to the Equal Employment Opportunity Commission (EEOC), which sued the company on Kashra's behalf for age and ethnic origin discrimination. Not surprisingly, Kashra conveniently left out a few key facts surrounding his discharge. Thus, when the EEOC investigated the full story, it dismissed the case.
Whoa! Fasten your seat belt! This is an example of lack of timely management follow-up of performance indicators. Where has Doug been for the past several months–asleep at the loom while Kashra was weaving his intricate pattern of deceit? Why didn't Doug deal with Kashra's performance more directly when a trend began to develop? This never would have happened if Doug performed regular audits and gave Kashra an action plan. Both parties should have signed the plan, and Doug should have set follow-up meetings to monitor the results.
Although we support the company's decision to terminate, we feel "termination for poor performance" was a risky choice of words. Unfortunately, "poor performance" often is interpreted as a lack of training in unemployment hearings. Instead, we recommend "theft," "unauthorized use," or "failure to perform the job of which he was capable"–all immediate termination offenses.
We would also advise that the company have a handbook for employees to sign, demonstrating their acknowledgment of the rules. This strategy acts as further evidence that Kashra knew his actions were against the rules. We also suggest that the company review its hiring decisions and determine if something in Kashra's history or during the interview process would have tipped the company off to his behavior problems.
We disagree with the company's failure to file criminal charges. We don't believe the concern about tarnishing the company's public image is valid. Most people recognize that any company may have a bad apple. The public will be more impressed if they perceive that the company has dealt firmly with the situation rather than attempting to sweep it under the carpet. Prosecution also clearly signals to other employees that the company will not tolerate criminal misconduct. It demonstrates that employees who engage in such activities will not only lose their jobs but also face the criminal justice system.
An interesting issue posed by this story is the company's right to search for and reclaim company property that is in the employee's possession. Federal constitutional prohibitions against warrantless searches and seizures generally apply only to government searches. However, many states restrict an employer's right to search such areas as an employee's desk, office, briefcase, and locker. Employers should ascertain the lawfulness of searches in their jurisdiction prior to doing such a search.
In this case, Kashra would likely have an "expectation of privacy" in his garage at home, and it is unlikely that the employer could lawfully drive a truck up to an employee's garage and start loading up boxes, since there is no indication that Kashra consented. Thus, the company might be liable for trespass.
It is understandable that the employer wished to preserve its public image, but this is theft–and that is the province of the police. The company materials would likely be considered to be evidence. Technically, the company would have the right to commence legal proceedings to recover its property or the value thereof but resorting to self-help is always fraught with peril for employers.
This story also illustrates the company playing "good guy" and getting stung–that is, getting slapped with an EEOC charge. To minimize its risk of legal proceedings, the company could have considered having Kashra sign a release surrendering his right to file any charge or suit against the company relating to his termination, perhaps in exchange for the company agreeing not to commence a civil lawsuit against him and a repayment schedule. Releases should always be drafted with the assistance of counsel to ensure they are enforceable.
Excerpted from Sex, Laws, & Stereotypes, by N. Elizabeth Fried, Ph.D.©