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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 33935
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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I have a question on employee fraud and theft in Texas. I work

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I have a question on employee fraud and theft in Texas. I work for a vendor company that sends vendors into certain retailers to assist in sales, merchandising, or any other jobs that are needed. My specific task was to go into an electronics retailer and sell a certain laptop. That is all I had to do. My employer is out of state and my immediate manager is in San Antonio, TX.

I was hardly in store, yet I still clocked in my hours from home. Meaning I got paid for not even being in the store. I would normally clock in from home and not show up to the retailer. This was not constant, as I did show up to the retailer on several occasions. The total amount of pay that I received while I was NOT in store was $2,304 (gross pay) or $1,879.19 (net pay). Just recently my manager placed me on temporary suspension and would not disclose why. I'm assuming because they found out what I was doing and are now investigating.

Lets just say they decide to go through legal matters to settle this. What would be the most possible scenario that would play out? Would this be charged as "theft" which in turn would possibly leave me with a State Jail Felony or would this be considered fraud or something else entirely? I have never been arrested or charged with anything, I am a family man and have no history of any run ins with the legal system or police.

My wife and I are worried that they will prosecute me and throw me in a state jail for theft. I just wanted to get some clarity on this situation. Am I in my right to worry about this or am I overplaying it? Any advice would be greatly appreciated.... Thank you.

Dwayne B. :

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

Dwayne B. :

So your only "offense" was clocking in when you were not working?

Dwayne B. :

Did you have ANY duties other than going into stores?

Customer:

No, my only duty is to clock in, go into the retailer, and stand around selling for 8 hours. I don't have any other duties. My only offense was clocking in at home, and not showing up to work. I would clock in from home, through a phone call in system, and just not show up to work.

Dwayne B. :

And this store was in Texas?

Customer:

Yes

Customer:

I did show on several occasions, so the total amount might actually be a bit less. The amount I listed on my question is the total amount I've been paid since starting there.

Customer:

It might be $150 or $200 less I believe

Customer:

But yes, I was getting paid for not going into work. Of course, my employer had no Idea this was happening. I am just a bit worried about the repercussions.

Dwayne B. :

It really doesn't fit the definitions of any crimes in Texas and definitely not theft. You can see the theft statutes at http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.31.htm

Dwayne B. :

I don't think it is a criminal offense, just a civil one.

Dwayne B. :

Just like if the employer withholds money form your paycheck when they are not supposed to it isn't looked at as theft.

Customer:

Ok, so in the case of a civil one what are the possible outcomes? Better yet, what is the worst possible scenario for a civil offense?

Dwayne B. :

You get fired, get sued, and have to repay the money plus whatever attorney's fees they have.

Dwayne B. :

And you can't collect unemployment.

Customer:

Oh ok, this is actually a huge relief. I just had to be sure on where I stood on this. I do plan on paying back what I owed and trying to fix the situation but my employer just told me that they would contact me on Tuesday to discuss the suspension. When my wife heard that she jumped the gun and assumed I would be arrested.

Dwayne B. :

No, but be sure and don't admit to anything. Just tell them that rather than argue about it you would like to pay them what they claim they are owed and be allowed to resign with a neutral reference being given if any other potential employers call them.

Customer:

Great advice, I will definitely do that. In our short conversation you have been most helpful. My wife and I greatly appreciate your knowledge and helpfulness in our situation. I'm glad to get this weight off my chest. Thanks again.

Dwayne B. :

You're very welcome.

Dwayne B. :

Best wishes to you on this and please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I get credit for my work.

Customer:

If their is any other advice you'd like to give me I'd greatly appreciate it, but if their isnt than I thank you anyways. You have definitely been of most help.

Customer:

Don't worry, I will definitely leave and Excellent rating!

Dwayne B. :

No, I think we've covered everything other than to say again be sure and don't admit to wrongdoing.

Customer:

Thank a lot, will do.

Dwayne B. :

Bye!

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