CA Laws for unauthorized removal of company property

[Ajiana]

We have a lady here who just started her maternity leave and she decided to take her personnel file with her. We informed the manager and he refuses to believe it. Our company handbook states that removal of company property is grounds for immediate termination. Is there a law about this? Isn't this a felony?

Thank you for any advice you can give me!

[cbg]

How did she get her hands on her personnel file?

Personnel files are company property and the employee does not get to take it anywhere. In your state, she IS entitled to a copy of anything in her file that she has signed. But she does not get the file itself.

Has she already taken the file or only announced her intention of doing so? It makes a difference to how I direct you further.

[Ajiana]

She requested it to check her vacation hours and no one monitored this activity. She ended up keeping it in a drawer at her desk for several weeks and when she left to go on maternity leave last week, she took it with her without informing anybody.

Thanks for your reply.

[cbg]

Your first mistake was allowing her to remove the file from where it is normally stored. While the law in your state requires that you allow employees to access their file and to have copies of certain documents, the law does not require that you allow them unrestricted access or that you allow them to remove the file from the premises. What would stop them from removing, adding or changing their records while in their hands? If your company policy has been to permit them to "check out" their file, I strongly recommend that you change that policy with immediate effect and say that from now on, personnel files can only be viewed in the HR manager's or the supervisor's office WHILE THE MANAGER OR SUPERVISOR IS PRESENT.

As far as your next step, I have two potential courses of action in mind but I want to consider them for a bit before I recommend one or the other. I'll post again before the end of the day.

[Ajiana]

Thank you for your input. The mistake falls into the hands of our manager who allowed her to take the file at her own discretion. This in itself, is another issue we have because when we informed the manager that her file was missing and that we suspect wrong-doing, he made up an excuse to cover for her saying that maybe it is on his desk which we know it isn't. I am compelled to inform our corporate office in Connecticut but my colleagues are afraid of recourse for "rocking the boat."

Again, thank you for your input, it is very valuable to me.

[cbg]

Okay, I re-read your initial post and saw that your company handbook specifically states that removal of company property from the premises is a termination offense.

That being the case, my suggestion to you is that you send her a certifed letter informing her that the file is company property; that she has ten days to return it and that failure to comply will result in termination. If she fails to do so, call the police and/or sheriff, whichever is appropriate, and ask them for help in retrieving stolen property. Follow through on the termination.

[Ajiana]

Thank you for your advice. As stated in my last post, the manager who has the authority to terminate her is making up excuses for her as he always has. I am appalled with this behavior and want to inform upper management of this but afraid of recourse.

Anyhow, thank you again for your time and energy.

[cbg]

I could swear I already posted this but it seems to have vanished.

What recourse are you afraid of? It isn't your fault that the manager made a mistake.

[Ajiana]

There is a lot of history behind this story but basically this manager favors this girl in every imaginable way. He allowed her to keep working even though she produced a doctors note ordering bedrest which he tried to hide until word got around to the corporate office and he was forced to send her home. He now knows that she has violated company policy and is trying to hide this as well. If we inform someone and he finds out, we're afraid he will fire us for blowing his cover. This whole situation stinks of legality issues and we don't know what to do. Is he breaking the law by allowing this to happen and even conspiring to hide it?

[cbg]

Let me put it this way.

As an employer, you are required by several different laws to keep employee records of various kinds. Most employers keep these required records in the personnel file. If at any time there should be some kind of legal issue which requires that you present her record, even if it's just a random audit of your 401k or your health insurance plan (which happen to everyone sooner or later) you will be in serious legal trouble if you are unable to present the file, in its entirety. As it is, there is no reason to believe that even if you are able to retrieve the file, she may have removed or altered some of the records. The integrity of the file has already been compromised and the longer it is in her hands instead of yours, the more likely it is that the file will have been appreciably altered.

In allowing the file to remain in her hands instead of being returned to the company, he is, if not exactly acting illegally, certainly putting the company in the way of being out of comoliance with the law.

I wish I could tell you that if he fires you for reporting him to your HR department, it would be illegal. Unfortunately, in your state it would not. I very carefully reviewed the "whistleblower" statutes in your state hoping to find you a loophole and could not do so - in your state protection exists only when you have reported illegal activity to the appropriate government agency and not when you report potential liability to your internal resources.

However, since his activities have already come to the attention of corporate (i.e. his being forced to send her home) I think it unlikely that your corporate office would agree to allowing you to be fired for bringing to their attention the fact that he is exposing the company to considerable legal liability. I think it is more likely, if your company has any sense, that HE is the one who will end up fired; he and his little friend who has stolen company property.

[Recruit]

You don't work for President Bush do you.

[Ajiana]

Thank you cbg, for your efforts and knowledge. I will discuss this further with my colleague who has even more inside information than I do. The actual company I work for is a good one but the management is lacking in many areas. If you're interested, I will post with any new developments that may occur.

[grasmicc]

Before doing anything, make sure she actually took the file and that you can prove that she actually has it.

Falsely accusing her of taking the file, particularly under the circumstances (she is on maternity leave), could get you sued for, inter alia, slander and wrongful termination.

This whole thing is going to look REALLY bad if you aren't in a position to prove that she took the file. Based on what you described, I don't see a shred of evidence on her taking the file that would even make it to the jury.

My advice:

(1) IN the future, do not allow employees unmonitored access to these files.
(2) Keep electronic copies of these files or some other duplicate in case of a fire in the building, loss, etc.
(3) Forget about the situation with the current employee, consider it a lesson learned and move on.

[Ajiana]

grassmicc,

Thanks for your input. I do see your point and I agree that it would be hard to prove that she took the file since the manager is willing to put his job on the line to protect her. At this point we're not quite sure how we are going to proceed. This is big and not easy to just let slide.