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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38911
Experience:  Retired (mostly)
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I own a security guard company. My officer manager made a copy

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I own a security guard company. My officer manager made a copy of the master key to my clients school and went inside and stoled a computer. Client asked me to identify the suspect on camera, I the owner identified the suspect as my office manager and police were called and the suspect was arrested charged and later convicted on commercial burglary. The client in a few days after the incident discountinued to use our services. We sent an invoice for 3240 for the days worked and services rendered. Now the client is withholding payment until we pay for damages. Client did not state damages or shown proof of damages done by our company since the computer that was stolen has been returned promptly on the day of the arrest of the suspect. They have mentioned before that they want to rekey the whole school which is 5,000 dollars. We do not have a liability agreement that we would pay for rekeying the school. They are refusing to pay until we pay first but have not presented with any invoices or proof of damages. Can we be liable to rekey the whole school?

Under the doctrine of "respondeat superior" (Lat. trans.: "let the master answer"), an employer can be held liable for the wrongful acts of an employee, if the acts were done within the scope of employment.

The question of whether or not an employee acts within the scope of employment is one of mixed facts and law. The answer depends on what the employee would ordinarily be required to do during employment.

If your manager would ordinarily make keys as part of the security services, then the wrongful use of those keys, even though not something about which you would ordinarily approve, is probably sufficiently within the scope of employment such that you could be held liable for damages to client.

You have the right to sue the employee for "indemnity," i.e., the damages caused by the employee's wrongful acts. But, all of this would have to be sorted out at considerable legal expense in a court.

So, at this point, it is conceivable that the client could sue you for damages. The question is whether or not the employer has actually suffered any damages.

Trespass to land does not require a showing of actual damages. A jury can award damages to vindicate the rights of a person for the invasion of their property. The amount of damages does not turn on whether or not there are any physical damages, such as via a theft. So, it is possible that a jury could award $5,000 damages simply because your employee entered the property with the intent to commit a theft crime on the premises. Whether or not a jury would do this is unknown -- but to be perfectly frank, I could see a jury awarding considerably more than $5,000. I could easily see an award of $50,000 in damages.

Given that possibility, you have to decide whether or not it would be better to try to obtain a release from the client for any further liability concerning this incident, in exchange for your canceling the bill (or, for whatever deal you can negotiate). Because, were the client to walk into my office with this case today, I would probably take it on contingency, and then sue you for $100,000, and then settle for $50,000.

Note: I'm not accusing you of any wrongdoing here. You're simply the victim of an allegedly bad employee who has created a huge problem for you. As an example, which may surprise you, just a few years ago, a bookkeeper for the State Bar of California (the agency that regulates attorneys) was found to have been embezzling huge amounts of money from the Bar for years. So, even an agency at the top of the legal "food chain" is not immune to getting stuck with a bad employee. It happens all the time, and no matter how careful you are, you can be the victim.

Sometimes, you just get scr****, and there's nothing you can do about it. All you can do is try to maintain good relations with your employees, so that they feel obligated to return the favor. Happy employees are less likely to steal -- but, if you get a bad apple, there's nothing you can do about it, except fire them and find someone new.

Please let me know if I can clarify my answer or be of further assistance.

Hope this helps.
Customer: replied 3 years ago.

the employee did this on his own time and hours were not billed to the school. Am I responsible for the employee off the clock?

Customer: replied 3 years ago.

also could I file a claim with my liability insurance for the damages that they will invoice me with?

That's certainly an argument in your favor that this was all done completely outside the scope of employment. If I were on the jury, that might cause me to believe that the employer is not liable.

The question in my mind is how is it that the employee obtained the keys in the first place? Was this part of their job to manage the keys? If it was, then it could be argued by the plaintiff, that you did not have a sufficiently secure process in place to prevent employees from using keys in their off hours to commit a crime or other wrongful act.

All of this is a judgment call for a judge and jury. There's no way to know which way a jury might rule -- because each fact will cause the jurors to lean one way or the other.

Right now, you have me, in my own mind, at about 50/50. I'm sure that you could supply other facts that would cause me to rule in your favor. But, I'm also pretty sure that the client could relate facts that would cause me to find in the client's favor.

The only way to know for certain how the case is likely to end is for you to refuse to pay, and risk a lawsuit. The question is: do you want to take that risk? If you do, then don't pay -- otherwise, try to make a settlement offer to get you released from further liability. I realize that you need the money to run your business -- but, you must balance the benefits and risks and determine which is the better move. Only you can make that decision. The best that I can do for you is to try to show you where the various risks lie, so that you can make an informed decision.

Edit: you aske about liability insurance. You should make the claim. The insurer will not pay if it believes that the employee's actions were intentional. But, if the ultimate issue is that you were negligent in supervising the employee, then the insurer must pay. Either way, you won't know if you can get the claim paid, unless you file the claim.

Sometimes, you must sue your own insurer, if it refuses to pay. Another "sinkhole" that you don't want to be in -- but, that's what happens many times, and you have to decide if it's worth the hassle to sue.

Hope this helps.
Customer: replied 3 years ago.

ok one last question:) If I take the school district to small claims court for non payment of the invoice but then they can sue me for 50,000 like you stated. The school district and Us never signed a legal contracts only emails stating that they want us to patrol their schools. We just invoiced them at the end of each month. Could lack of legal paper work hold us less liable if they invoice us for damages?

Customer: replied 3 years ago.

Also the back story on this is I was diying in the hospital from a heart deases and later had a heart transplant and was in the hospital and later was at home recovering from a surgery and did not know that this employee made a copy of the key that was already returned to the school months ago. Could any of my medical history help my case?

You said school, but you didn't mention that it was a school district. I assumed this was a private school.

Suing a state agency is very different from suing a private business. You must send a claim for payment to the district officer in charge of handling claims under the California Government Claims Act. If you do not do this within six months of the date that the claim arose, you are barred from suing.

Contact the superintendent of schools office and find out where to mail a claim. Otherwise, if you sue without going through the hoops, the small claims court will simply dismiss your action and tell you to file a claim with the school district, before you sue.

Also, the school is probably not going to sue you for any amount. It will just refuse to pay and let it go, unless you sue the school -- then, it may file a crossclaim against you to try to scare you into giving up.

Re the lack of a written agreement, since you have apparently been paid in the past for your services, that would be enough to prove you have an ongoing contract. It would be better to have a written contract, but it's not absolutely required.

Concerning your health care issues, they are irrelevant. In fact, trying to sue that evidence as a means of avoiding liability, would accomplish the reverse. The school district could claim that your condition made it impossible for you to properly manage your business, so that you shoudl have stopped providing services. Instead, you continued to provide services, when you weren't "minding the store," as the old saying goes.

Hope this helps.
Customer: replied 3 years ago.

Thank you that certainly helps a lot. I am glad I mentioned a school district I had no idea it operates on diff laws. What do you suggest I do. How do I scare them to pay for the services. Should I mention a certain government agency that would shake them up a little for them to go ahead and pay? Could they still make me pay for rekeying the school. What would you do?

Should I mention a certain government agency that would shake them up a little for them to go ahead and pay?

A: That would be criminal extortion. So, "no," I wouldn't do that.

Could they still make me pay for rekeying the school?

A: If they decided to sue, and they win, then yes, they could. But, I doubt that they will sue you.

What would you do?

A: I would offer a settlement, that in exchange for my canceling the current charges, the school district agrees to release me from further liability for anything connected to the incident with the employee theft. This may seem a bad deal, but if you sue them, they will sue you right back, and in my opinion, based upon your allegations, you will lose that lawsuit.

Hope this helps.
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

Is there a "law code" where it states that employer is not responsible for criminal actions of an employee if employee is off duty or not on the clock.

[A]n employee's willful, malicious and even criminal torts [intentional wrongful acts] may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts. See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296-297.

The above-cited case law suggests that if the employee is operating outside of his or her hours of normal employment that an employer would not be liable. Whereas, if the employee is engaged in a criminal act during working hours, then the employer would likely be liable.

There is, however, no specific California Code distinguishing between employer and employee liability. It' all judge-made law.

Hope this helps.