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Can a search warrant be issued for possible theft of employment records....?

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  • Can a search warrant be issued for possible theft of employment records....?

    Hello.

    We have an issue where one employee stole the employee records of another employee who is attempting to sue us for not giving her rest breaks. The entire file was stolen and now we do not have the records to protect ourselves during this. Is there any way we can have the home searched of the employee legally? We are pretty certain the one who did the theft probably doesn't have them; she would have given them to her friend...quitting shortly after she took the file.

    Thanks. We are a mom and pop business and didn't realize we were doing anyting illegal...the employee in question spent hours on the internet...does that qualify as a break if we can prove it?

  • #2
    What state are you in?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      You are in desperate need of a lawyer here. I'd suggest contacting your legal counsel immediately. What recourse you have is very situation specific.
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

      Comment


      • #4
        I asked about the state because whether breaks are required at all, let alone what will qualify as one, is state specific. Federal law does not require breaks at all, and only about half the states do.

        The rest of your question goes beyond the scope of employment law.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          If you are in a state that requires breaks, and that individual is in that class that is required to get a break, and you refused breaks, well I hope he/she sues your pants off! Mom/pop shop whatever. You want to be in buisness, You must follow the laws. Remember "ignorance of the law is no excuse".You didnt have a problem with internet surfing before, now did you?
          I think cbg can answer exaclty what this class of required breaks are(certain hotel employees in IL??). But if not anything above, I hope everything turns out for the best!
          Your options in the workplace are the three "L's"- Live with it, Lobby for change, or Leave. Screaming for an attorney will do no good most of the time.

          Comment


          • #6
            Stressbuster, FLS requires that a person is working and is to be paid for all time even if all they are doing is waiting for work to happen. Such as reading a book or surfing the internet while a receptionist waits for the phone to ring. You are likely to be hard pressed in attempting to use the time on the internet as rest time if the employee had "down" time while waiting for work to happen. This is federal and therefore is universal nationwide.

            Now on the other hand if the employee is surfing the internet when he/she is supposed to be doing work assignment, and provided the surfing was not for work related material, then it "MIGHT" be counted as rest time. Also how can you prove that the employee in question is the only one that had access to the computer where the internet surfing took place.

            This issue will be very situation specific and as cbg has noted to an extent state specific. As far as the search of the employees home, as you have been advised by ElleMD, an attorney is your best bet. Further if you are that unaware of the employment laws on the federal and your state levels now is not too late to get yourselves educated as to what you can and cannot do where your business and those you employee are concerned. Doing this now can help you avoid problems in the future with other employees.

            Comment


            • #7
              Since we have no idea what the employee is claiming or whether any laws were actually violated or not, I think before we start giving any advice beyond what we already have, we should wait to hear back from the poster.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

              Comment


              • #8
                Originally posted by cbg

                Since we have no idea what the employee is claiming or whether any laws were actually violated or not, I think before we start giving any advice beyond what we already have, we should wait to hear back from the poster.

                Originally posted by stressbusters View Post
                Hello.

                We have an issue where one employee stole the employee records of another employee who is attempting to sue us for not giving her rest breaks. The entire file was stolen and now we do not have the records to protect ourselves during this. Is there any way we can have the home searched of the employee legally? We are pretty certain the one who did the theft probably doesn't have them; she would have given them to her friend...quitting shortly after she took the file.

                Thanks. We are a mom and pop business and didn't realize we were doing anyting illegal...the employee in question spent hours on the internet...does that qualify as a break if we can prove it?

                Okay cbg, it appears to me that the employer is accusing one employees of steeling the employment file of another employee that has a claim filed for not being allowed to take breaks. The employer wants to know if they can have a search warrant issued to search the home of the person who filed the no rest period claim. It appears that the employer is wanting to count time spent on the internet as rest break time, in relation to the claim. It is my opinion that if the empolyee was surfing the internet while waiting for work to happen that it is NOT rest break time and would be paid as time working. That was one of the issues in the original post. The other issue is they want to know if they can have a search warrant issued to search the employees home that they suspect has the file. As suggest by other poster I agree that they need the advise of an attorney.

                I think if we are not welcome to post here and need to be chastied on every corner for stating an opion or offering what we think might be useful advise, then the rules of this board should be modified to reflect such a restriction. Otherwise if there is a REAL problems in what someone is posting then state the problem and let each to their own.
                Last edited by BnThrDnTht; 07-22-2007, 03:40 PM.

                Comment


                • #9
                  At the present time, we don't know if the employee was even required to provide rest breaks, let alone for how long or what would be counted. I personally think if the employee was surfing the net when she is supposed to be working, that COULD be considered a break, but state law would rule. Even if the question of the search warrant fell under employment law, which it doesn't, we don't know the state or the jurisdiction.

                  I've seen posts where responders made assumptions as to what the poster was doing or violating; the assumptions were incorrect, and it became very difficult to sort out later. The assumptions were, by the end of the thread, believed to be fact and it got very messy fixing them.

                  I don't request responders to wait for additional information on a whim.
                  The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                  Comment


                  • #10
                    I am not one to normally assume a bunch as I know where it leads. The ex-employee has filed a claim for not being allowed to take a work break, according to the OP. And the OP/employer looking for a way to cover the break period would imply that one is required. I think that this one falls under a safe assumption due to those two issues. Then again I could have wrongly assumed that the employer knows at least some of the labor laws in their state and the rest period is not requied.
                    Last edited by BnThrDnTht; 07-22-2007, 04:26 PM.

                    Comment


                    • #11
                      My opinion

                      BNTHRDNTHT....since you support everyone being able to offer their opinion, here's mine. You seem to have a problem with the way CBG moderates the board. Either accept it and quit whining, leave or consider being a moderator yourself and see just how much fun it is.

                      HATEWORKING....such an angry little person, seek some help quick.

                      Comment


                      • #12
                        And this is why I wanted everyone to wait till the poster got back. We are theorizing ahead of our data. If you review the posts on this forum alone, you'll see how many people assume breaks are required in states they are not. You'll even find a lot of people who believe Federal law requires breaks.

                        Stressbusters, when you return, send me a PM and I will reopen the thread. Until then the subject is closed.
                        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                        Comment

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