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Termination for unexplained after hours access to the building?
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Termination for unexplained after hours access to the building?
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I work at a medical facility in Texas (at-will state). We recently had a cash payment theft reported. This money was received by a department on Saturday morning, left with the other pa
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Termination for unexplained after hours access to the building?
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Termination for unexplained after hours access to the building?
posted at 10/18/2012 5:07 PM EDT
on Workforce Management
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Posts: 3
First: 7/31/2012 Last: 10/18/2012 |
I work at a medical facility in Texas (at-will state). We recently had a cash payment theft reported. This money was received by a department on Saturday morning, left with the other payments in the supervisor office that same morning and on Monday when it was time to deposit the payment, it was missing. HR pulled an access card report to see who had entered the building Saturday and Sunday. They then checked it against what workers clocked in on Saturday and Sunday. There was only one individual that was on the access building report (showing that her badge was used to enter the building at 7 pm Saturday) however there was no time logged in the timeclock for her. All other employees accessed the building between 6 a.m.- 2 p.m. and show timeclock punches in/out. We then pulled that employees access for the past six weeks to see how many other times she may have been in the building after hours and checked that against her timesheets. We discovered that there were 3 other Saturdays in the past 6 weeks were she accessed the building after 5 p.m. but did not punch in/out suggesting she was not there to do work. Today we confronted her and asked her why she was in the building over the weekend and she denied being here. We told her that we had a report showing she accessed the building not only this past Saturday but the 3 other Saturdays and she again denied being in the building. She says that was not here and the report must be wrong. We have done our due diligence to see if there is any possible way that the report could be wrong and we are confident that it is not. She is an African-American female, over 40 with only minor performance infractions documented in her personnel file. Her supervisor feels that she is lying for whatever reason and now has a trust issue with her and wants to terminate her. We only have the report and her opposing statement—no camera footage, etc. What liability are we opening are self up to if we terminate her for being on the property afterhours and breaking an implied and understood policy within her department? (Implied meaning that there is not a written policy in the handbook that says an employee may not enter the building after hours, but there have been verbal and written communications that employees are not to access the building after hours unless it is work related and approved in advance.) |
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Re: Termination for unexplained after hours access to the building?
posted at 10/19/2012 12:42 PM EDT
on Workforce Management
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Posts: 173
First: 9/29/2011 Last: 2/11/2013 |
First, you should consult with legal counsel in Texas to see what your liabilities might be if you terminate. Second, do you have a discipline policy? Is it progressive? Is theft specified as one of the immediate termination offenses? I know things have changed in Texas and it's not the same "we don't need no stinkin' reason to terminate!" state that it was when I was there 20 years ago. It seems logical that there are 2 scenarios with this - either she is entering the building, took the money and perhaps stole other items during the other off hours building entries OR someone else, either with her permission or not, obtained her card and used it for the same purposes. I would venture that allowing someone else to use her card or not safeguarding it is potentially the more serious offense. Since money was stolen, I suggest that you consider filing a police report. Let the police investigate. Or hire a contract investigator at the very least. Since this ultimately comes down to the employee, you could suspend her pending results of the investigation. And an interview with a police offer/detective does have a way of refreshing a person's memory wonderfully. You also might want to look into a new security system that either has cameras, a PIN entry during off hours, or both. |
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Re: Termination for unexplained after hours access to the building?
posted at 10/19/2012 3:21 PM EDT
on Workforce Management
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Posts: 174
First: 9/20/2011 Last: 2/11/2013 |
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Re: Termination for unexplained after hours access to the building?
posted at 10/22/2012 11:38 AM EDT
on Workforce Management
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Posts: 144
First: 9/21/2011 Last: 2/8/2013 |
I am in Texas. Actually I disagree that the policy is just "implied" if there have been written communications to all employees regarding the issue. Can you prove that? When was the last time you sent it out? How did you send it? Does she have access to work equipment that she might be using off hours for personal reasons (internet access, copy machine, fax machine, etc)? Do you limit the use of that to to business use only? I honestly would not pursue the theft charge, but rather the fact that she accessed the premises multiple times after hours and is claiming that she did not. Either she did and is lying and should be terminated or someone else did using her card. If she has used her card before/after, then she is not protecting the company/card. And the loss of trust one way or the other would be enough to stand on -- AS LONG AS you haven't treated someone else differently. I would see if you had disciplined/term'd any other employees for accessing the property after hours without clocking in/out. And you might have to start policing after hours usage more carefully and you just caught the first one (and not the only one). If you terminate her, but don't terminate the next one (what happens if it is the star of the business let's say), you could also have an issue. What do you want your discipline/termination policy to be on unauthorized access? |
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Re: Termination for unexplained after hours access to the building?
posted at 11/9/2012 3:38 AM EST
on Workforce Management
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Posts: 2
First: 11/6/2012 Last: 11/9/2012 |
In Response to Termination for unexplained after hours access to the building?: I work at a medical facility in Texas (at-will state). We recently had a cash payment theft reported. This money was received by a department on Saturday morning, left with the other payments in the supervisor office that same morning and on Monday when it was time to deposit the payment, it was missing. HR pulled an access card report to see who had entered the building Saturday and Sunday. They then checked it against what workers clocked in on Saturday and Sunday. .....snip.... Now you have to pull all access card and time card records and terminate all other like violations that might have occured in the last year or more. It is not uncommon for individuals to meet other individuals or to pick up a forgotten hat, coat, lunch box, paycheck .... any of a long list of common reasons. So unexplained access may prove common and in the presence of an accusation be stonewalled. If a family member was sent to grab a coat an accusation would be stonewalled as would a "liason" with some big wig. You gave no information about the number of employees present in the building and clocked in. This must include exempt employees too. If there was unsecured cash in a "vacant building" it could be important to verify that the responsible manager is not looking for a scape goat. Without a police report and investigatin it can be difficult to claim a loss (taxes or insurance). Is this the only theft, lunches, drinks, coats, purses, computers, computer memory, drugs? Without cameras, you have no measure of tailgating,,,, i.e. where multiple people walk in behind one card. A lack of a clear and enforced tailgating policy weakens the accusation. A full or even reduced staff inside the building makes this person one of many to look at. Is there a visitor log? There are many types of medical facility. Patients do have visitors... While Texas makes it easy to terminate a person I doubt that it gives anyone a free ride with regard to slander/liable. Since the police have not been called in a timely manner the issue of theft may prove to work against the company. The medical community is small even in a big city so manage any gossip. I would consider terminating a list of folk if there was very much money involved. Do get legal advice.... |
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Re: Termination for unexplained after hours access to the building?
posted at 11/13/2012 5:44 PM EST
on Workforce Management
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Posts: 173
First: 9/29/2011 Last: 2/11/2013 |
The card was clearly used on multiple occasions. The employee denies having used it. Therefore, the employee either knowingly or unknowingly allowed someone esle to use the card to gain unauthorized access to the facility. I would use that as grounds for termination, not the actual theft. |
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Re: Termination for unexplained after hours access to the building?
posted at 12/3/2012 12:06 PM EST
on Workforce Management
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Posts: 1
First: 12/3/2012 Last: 12/3/2012 |
I just read a Fisher & Phillips, LLP publication addressing this issues. The article, written by Reyburn Lominack and Matthew Korn, states that on 9/28/2012, the NLRB held that a hotel' employer's policy for prohibiting off-duty employees from accessing the interior areas of the hotel without prior approval of management violated the NLRA, specifically that it unlawfully interfered with the right of employees to engage in protectged concerted activity. They noted "that the NLRB can and will find off-duty employee access policies unlawful regardless of whether they are actually applied to discipline employees". Their recommendation was that managers should not be allowed to "have the discretion to decide under what circumstances an off-duty employee may access the premises". |
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Re: Termination for unexplained after hours access to the building?
posted at 12/3/2012 12:55 PM EST
on Workforce Management
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Posts: 173
First: 9/29/2011 Last: 2/11/2013 |
Perhaps. But in this case, the employee denied having been in the facility during off-duty hours so this wouldn't apply. This then becomes a case in which she knowingly or unknowingly permitted another person to use her access card to enter the building. That's what she should be disciplined for and would most certainly be outside the scope of the NLRB case you reference. |
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