A recent study by the Seattle-based Institute For Corporate Productivity (I4CP) linked the current economic downturn to an increase in workplace theft. According to the study’s findings, 15 percent of the employers that responded to the I4CP’s survey reported an increase in workplace theft, with 27 percent of respondents in large companies reporting an increase. (The I4CP’s report can be found at http://www.i4cp.com/news/2008/12/11/study-down-economy-sparks-rise-in-workplace-theft.) With this trend comes the question: What can Ohio employers do to remedy workplace theft by their employees?

In lieu of (or in addition to) pressing criminal charges against an employee (or former employee), an employer might consider a civil action under Section 2307.61 of the Ohio Revised Code. Section 2307.61 authorizes a civil action for any property owner against any person who steals or willfully damages property.

Section 2307.61 imposes civil penalties against a person who is found to have stolen property. The statute allows the aggrieved property owner to recover the value of the stolen property as compensatory damages, plus liquidated damages up to $150. Alternatively, the statute allows the property owner to elect to recover liquidated damages of up to three times the value of the property. If the damages at issue are less than $5,000, the property owner also may recover costs and attorney fees, so long as the owner has made a written demand for payment at least 30 days prior to initiating a lawsuit.

When considering this avenue as a remedy for an employee’s theft of property, an employer must also consider its own potential liability in the event the lawsuit is not successful. The statute provides that the accused—if he or she prevails in the lawsuit—may recover his or her costs incurred in defending against the lawsuit, plus any compensatory damages that arise from having been sued. This feature is a built-in deterrent to an employer who might take the approach of filing suit first and asking questions later. So before instituting a lawsuit, an employer must be confident in its ability to establish the employee’s liability. Proceeding with suit based on unfounded or flimsy allegations carries some financial risk for the employer.

Of course, an employer victimized by an employee’s theft also may file criminal charges with the local authorities and hope to receive restitution following a conviction. Whether a criminal prosecution takes place, however, is entirely in the discretion of the prosecuting authority, so the employer does not have ultimate say in whether the employee will be prosecuted. In the event that the prosecutor decides to prosecute a theft offense against the employee, the employer will generally be shielded from liability for malicious prosecution—regardless of the outcome of the criminal trial—so long as the employer has been truthful with law enforcement and the prosecutor concerning the theft allegations.