Builders and Contractors Exchange
Weekly Bulletin: 24 Oct 2005
Prosecuting Employee Theft
By: Trey Kelleter
Unfortunately, at some point every contractor will have to deal with employee theft, whether it involves missing building supplies or financial and accounting shortfalls. In such situations the contractor has to decide whether, and how, to prosecute the employee. A basic understanding of the process is needed.
In general, if an employee steals items or money that he had the right to possess under a position of trust in the company (such as an office manager who steals money from incoming receipts), his crime of theft is called embezzlement. If the employee uses his special access to take items that he had no right to handle in the first place (such as a laborer who backs his pickup truck into the company's store yard after hours to steal lumber), his theft crime is deemed larceny. In either event, such a theft crime in Virginia is punishable as a felony (with up to 20 years in prison) if the employee stole items worth $200 or more, and as a misdemeanor (with up to a year in jail) if the items taken were worth less than $200.
To initiate a criminal prosecution, you can go directly to the local magistrate in the city or county where the crime occurred to swear out a criminal complaint. If you do, be prepared to provide the employee's name and address and to fully explain the basis for your complaint. The magistrate will not issue a criminal warrant against the employee unless he has probable cause to believe a crime was committed. Ask yourself, was the employee caught red handed or do you just suspect him based on second-hand rumors? Thinking ahead, ask yourself who will testify in court to prove the theft. Keep in mind that hearsay (what other people have told you) usually is not admissible in court. Instead, you must be prepared to have all the people with firsthand knowledge of the theft appear in court, rather than just have one person show up to summarize the evidence.
This leads to a critical point. Criminal cases require investigation and some appreciation for the rules of evidence before they are taken to court. Because of this, it is almost always best not to go directly to the magistrate to file a criminal complaint. Only consider this option for simple misdemeanors in which you truly caught the employee red handed or he confessed to you. Instead, you should first contact the police or local prosecutor, especially for any felony. A police detective will investigate or at the very least help you organize the evidence with an eye towards what is required for court. With this in mind, you should be prepared to give the police a thorough summary of what you understand happened and the names and contact information for any witnesses. A detective will swear out the criminal complaint at a point when he believes that the case is ready to go forward.
The Commonwealth's Attorney will then prosecute any felony thefts in court. He will work with you and the police and decide how best to handle the case. If the case is not fully prepared, the prosecutor will ask that a detective investigate further. This is all the more reason to go to the police first.
Whenever possible, the best route is to contact your own lawyer who has criminal law experience. He or she can help you determine the merits of the allegation and help you gather the relevant information. Just as importantly, he or she can contact the police and Commonwealth's Attorney directly on your behalf and help monitor the case so it does not get lost in the system.
A future column will discuss strategies for minimizing or preventing employee theft in the first place.
Questions?
If you have any questions about this article or any other related matters, please contact:
This article is meant to bring awareness to this topic and is not intended to be used as legal advice.