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RobertJDFL, Lawyer
Category: Criminal Law
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Experience:  Experienced in multiple areas of the law.
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I started using my corporate AMEX for a bunch of personal expenditures

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I started using my corporate AMEX for a bunch of personal expenditures (for the miles), and I recently found out that this is a big no-no, despite the fact that I am responsible for paying the bill each month. My employer reimburses me for the work-related travel expenses that I use the card they don't directly pay the bill for me as is sometimes the case at other companies. But if I am not mistaken, since it was issued to me by AMEX with my name AND my employers name on it, and I had to apply for the card through a special web portal only for our employees, I have to assume that they are in some way acting as a guarantor for the card. Which is why it would make sense for them to not want the cards to be used for anything other than work-related expenses. I feel like such a moron for not paying closer attention to the rules when I was first issued the card. And after doing some research online, I have found some extremely scary stories from others who have done as I have. Am I seriously looking at some sort of criminal prosecution here? I assume that termination is basically a foregone conclusion at this point. Or soon, anyway. As of right now, they aren't aware of my personal use of the card, as I have consistently paid the balance in full each month. And I have never, ever attempted to expense any purchases that were for personal use. BUT, I have foolishly allowed the balance to grow this month due to some unforeseen events, and I am in danger of not being able to make the full payment in March. Can you offer ANY words of advice to this foolish, irresponsible person? I just want to make it right and NEVER be in this situation again.
Thank you for your question.

Honestly, I don't think you are in any danger of criminal prosecution. Even if you employer were to find out, they would have to report this matter to the police and then the state attorney's office would have to decide whether to take the case. Here, there was no intent on your part to defraud the company or steal from them - you simply were not aware of the manner in which the card was supposed to be used. Plus, you have to think that a) your employer would be most concerned as to whether you sought reimbursement for personal expenses (you didn't) and getting reimbursed for any personal expenses. Reporting you to the authorities doesn't accomplish that.

As for termination - you know your employer better than I. Rather than letting them discover it for themselves, however, it may be better if you approach your employer in a sit down meeting and explain that you had been using the card for personal expenses unaware that you could do not that, but paying the bill in full, and as soon as you found you, you immediately stopped using it to make such purchases.

If you have documentation to prove that you never sought reimbursement of these personal expenditures, even better. Furthermore, if you do owe any money this month for expenses that you will not be able to pay, I suggest letting them know the soonest you can make full payment, or have a proposed payment schedule to pay the debt.

Customer: replied 3 years ago.

Thank you for your prompt reply. Just realized I hadn't given any dollar figures for context. During a normal month of travel for my job, I would rack up about roughly $7-10K in expenses (legitimate). The current balance now for March is up to $32k, and that includes about $5500 in legitimate exwork-related expenses (meaning the remainder are my own). Does that change anything in your opinion?

Also, I completely understand about going to them first, rather than having it them "discover" this on their own… however there is a 50/50 chance that I could in fact make the full, mammoth, gargantuan monsterously-huge payment in March if I am able to secure enough freelance work in the coming weeks. Based on that possibility, I am aprehensive about revealing this folly to them at all. I'm feeling that if I can pay the balance, and never use that card for a single dime of personal expenses again, then this will all just add up to one valuable, scary lesson. Kind of like touching a hot pan when you're a kid. Only in my case, the pan happens to be a $32,000 debt and possible criminal prosecution.

By the way, should the unthinkable come to fruition and I am unable to make the full payment in March, I have every intent to pay it back in full as soon as is humanly possible. Of course unemployment might make that a little more challenging. And regarding your comment about proof of not expensing personal items, the way it works at my company is I submit receipts for travel expenses and they're examined under a microscope to ensure that it's all above boards. Sometimes even expenses which are legitimate still get declined because of various technicalities. So there's no way that my charging a doctor bill or groceries or a new pair of Nikes would ever get approved as an expense. Even if I wanted to, there's no way that illegitimate expenditures could be passed of as legitimate.

Thank you for your reply. Is your employer not receiving copies of billing statements? Given the scrutiny with which you say they examine ever expense, and that it is a corporate card issued for the company, I would be surprised if they didn't get a statement every month. And, if they do, then they already have an idea about you using the card for personal expenses.

Regardless of the amount spent this month, it doesn't change my answer as far as it being unlikely that this would be a good case for criminal prosecution. It may make it more likely for your employer to terminate you, but there still was no INTENT to use the card for fraudulent means or attempt to make the company pay your private expenses. This is supported by the fact that you paid the bill every month and your own statement that the company has a policy of reviewing all business expenses carefully -so it would be silly to try to "get one over" on them.

Theft and fraud require the actual intent to commit a crime. Does this mean you couldn't be arrested? No, but it means that without being able to prove intent, a prosecutor couldn't get a conviction either, and If I were a prosecutor looking at documented proof of regular full payment on the card every month, I would feel like there wasn't a criminal case.

Additionally, in what way would the employer benefit by having your arrested? If they simply want the money back, that wouldn't accomplish that, nor would terminating you. From a business perspective, it makes the most sense for them to arrange a payment plan where monies are deducted from your regular paycheck until paid in full. This may have been a gross mistake and an error in judgment, but you aren't a criminal.

I cannot advise you whether to tell your employer or make the payment and consider this a valuable lesson. But consider that if you cannot make the payment in full, or even if you do, if the employer later finds out what you were doing whether or not it will look worse for you because you didn't come forward.
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