Q. Our company is being sued by an employee for discrimination. During the lawsuit proceedings, we discovered that he had been stealing from us. Do we have any recourse?
A. Ohio has a specific statute (Ohio Revised Code 2307.61) that allows a party to sue civilly for theft. Not only can one recover the amounts stolen, but also get three times that amount as liquidated damages. Because of this penalty provision, Ohio’s civil theft statute is a powerful tool to combat employee theft, even against former employees.
Pursuing a claim under this statute, however, comes with some risk. If the defendant (e.g., the employee accused of theft) prevails, he is entitled to recover the cost of defending the civil action, plus any compensatory damages that may be proven. Thus, if you are considering pursuing a civil theft claim, it is important to conduct a full investigation—and be reasonably confident in your right to recover.
Counterclaims against employees generally carry risks in and of themselves. Employers must carefully weigh the benefit of a possible recovery against the very real risk that the employee will amend the lawsuit to add a retaliation claim based on your filing of a counterclaim. As long as the claim against the employee is objectively based, an employer has a right to file the claim, but should recognize that it will likely be defending a new retaliation claim.
If you have never before sued an employee, think twice about whether this is the right case on which to set a precedent, in light of the employee’s protected activity.
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