Time theft may be hard to prove, but you can still be fired — and sued — for it

If you can objectively prove that an employee claimed more time than they actually worked you can deduct it from their wages on their next pay cheque without their consent

At least once every three weeks I get a call from an employer about employee time theft. Alleging it is one thing. Proving it can be quite another.

If we are talking about a simple sheet in the office where you sign in and sign out, there are often excuses that can be made: “I worked 15 minutes into my lunch before I realized what time it was and so I signed myself out later than I left to make up for it.”

Without some objective way to verify the excuse, the best an employer can do is provide a warning that any further such incidents will lead to termination and proceed accordingly. And to be fair, the honour system works well for the vast majority of employees. It is important not to overreact and punish all for the sins of a few.

If you can objectively prove that an employee claimed more time than they actually worked, you can deduct it from their wages on their next pay cheque without their consent. Usually, any deductions require written consent but not the overpayment of wages paid in error.

It is rare to hear about employees being sued for time theft but it happens.

Sean worked at a nuclear power facility on a safety crew. In the seventh month of his employment a human resources representative did a routine audit of employee time sheets. Initially, she found two different shifts when Sean said he was working, but was not actually on site.

Employees completed their own time sheets and had them approved by sometimes inattentive supervisors. But at a nuclear power facility there are several different ways to tell if an employee was present. You can’t get onto the property without it being recorded. You can’t go inside the facility without signing out a security tag in your name and of course there are cameras everywhere.

Once the two days were discovered, Sean was summarily terminated. There can be no excuse for saying you were at work when you simply were not there. Once might have been a mistake. Twice, not so much.

After Sean was terminated the employer did a full review and discovered that Sean, in his seven months of employment, had stolen more than $44,000 in time. It made the decision to sue him for fraud.

There were likely two motivations. One, of course, to get the money back, and the second to set an example for any other employee that might be contemplating trying to bilk the system. The second was probably more important than the first.

At trial, Sean was not daunted by the fact that the employer had him cold. He presented the judge with faked emails that he pretended came from the company that justified or explained the irregularities. Unfortunately he made several spelling mistakes in email addresses and in the standard confidentiality clause. When he was challenged on cross examination about these fraudulent documents he simply said that he had “produced these documents for my case so it swings my way.”

The judge was not impressed. Sean was ordered to pay the $44,000 and the costs of the trial.

The reality is for most small employers that the cost of litigation added to the bother and time away from the business dissuades them from suing an employee guilty of time theft. Any employer with a large workforce, however, has a vested interested in making an example of cheats, regardless of the cost and bother.

For those of you that are resentful that I have pointed out it is less risky to bilk a small employer, consider this: whether your employer is large or small, when you are caught you will still be out of a job with only a nasty reference to rely on.

Ed Canning practises labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com. Employment law information: hamiltonemploymentlaw.com