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Defend time theft allegations

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Frequently Asked Questions

Time theft occurs when an employee accepts pay for time or tasks not actually worked or completed and can vary widely in form, from long breaks to buddy punching (clocking in for a co-worker). It can also occur in more subtle forms such as incessantly using the internet for personal affairs during work hours. As technology becomes more advanced, people need to be vigilant about electronic monitoring may be used to measure employee productivity, and thus may be used as evidence of time theft. 

What is Time Theft?

Time theft includes various behaviours where an employee deliberately misrepresents their work hours or productivity to gain extra compensation. It includes cases such as clocking in earlier or out later than worked, falsifying work records, and other acts where an employee is paid for time not actually spent on work tasks.

Time theft also occurs when an employee inaccurately reports their work hours, often to receive payment for unproductive time by intentionally misleading the employer. Time theft can entail not working at all, or even being unproductive during work hours.

Can I Be Criminally Charged for Time Theft? 

Yes, time theft can lead to criminal charges under the general theft provisions of the Criminal Code. This includes “theft under,” which applies to theft of goods or services valued under $5,000, and “theft over,” for values of $5,000 and above. While penalties can vary, theft under $5,000 is generally treated less severely than theft over $5,000.

However, theft from an employer is often viewed more seriously as it involves a breach of trust and authority. This breach of trust makes it more likely for employees convicted of workplace theft to face incarceration.  When determining the appropriate sentence in a case, the court will consider all aggravating and mitigating factors. Stealing from one’s employer is seen as highly aggravating given the trust the employer has placed in the employee.

Workplace Investigations for Time Theft 

Employers can uncover time theft using several methods, including discrepancies in work output, reports from other employees, or through surveillance tools. These tools, often in the form of specialized software for remote monitoring, gained prominence during the COVID-19 pandemic. If time theft is detected, an employer may launch an internal investigation and possibly refer the case to law enforcement.

The situation can become complex if an employee argues that they completed their assigned tasks promptly and therefore deserves the full allotted work time. If accused of time theft, it’s crucial to consult with a lawyer to explore your legal options.

Moreover, it is important for employers to establish clear policies on the use of electronic monitoring systems. They must also transparently communicate to employees how these systems operate and how data collection will be handled.

Punishments for Theft Depend on the Value of Property

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What Are the Penalties for Time Theft?

The criminal penalties for time theft correspond with those applicable under theft laws, with potential exacerbation due to the violation of employer trust. People found guilty of this crime might face jail, fines, or both.

The punishment for theft offences are outlined in section 334 of the Criminal Code. Where an individual is convicted of theft over $5,000, they will face a maximum of ten years in prison where the Crown proceeds by indictment. Where the Crown proceeds by summary conviction, the accused will face a maximum of two years less a day in jail and/or up to a $5,000 fine. Where an individual is convicted of theft under $5,000, they will face a maximum of two years in jail where the Crown proceeds by indictment, and a maximum of two years less a day in jail and/or up to a $5,000 fine where the Crown proceeds summarily.

Further, those found to have committed time theft are likely to be terminated from their position. Being terminated can have long-term repercussions on the accused’s career and prospective employment.

How to Defend Theft Under $5000

What if I am Accused of Time Theft as a Regulated Professional?

For regulated professionals, such as doctors, lawyers, or accountants, accusations of time theft can prompt additional investigations by their respective regulatory bodies. These organizations have the power to impose sanctions, suspend, or revoke professional licenses and can impose significant fines. The ramifications for regulated professionals are therefore especially severe, making it necessary to engage a lawyer skilled in criminal, employment, and regulatory law when facing allegations of time theft.

Overall, time theft is a serious accusation with potential criminal, professional, and personal repercussions, underscoring the necessity for professional legal guidance when such issues arise. Once it is established that the employee committed time theft intentionally, the consequences can be quite serious. Some consequences can include termination or lawsuits over the amount of money the employer lost through the unproductive work.

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Recent Cases

Retail, Wholesale Department Store Union v Yorkton Cooperative Association, 2017 SKCA 107

In the case involving D.O., a supervisor at Yorkton Cooperative Association, the issue of alleged time theft led to her termination. The employer accused D.O. of falsifying time sheets to overstate the hours she had productively worked. Challenging this dismissal, D.O. took the matter to arbitration.

The Arbitration Board found that D.O. had prematurely closed work on two occasions and altered her time sheets to inaccurately reflect her hours. There were a few more instances where she was alleged to have committed time theft, but these instances were not able to be definitively proven. Although she also lied during the investigation, the Board decided to suspend rather than terminate her employment.

The Union later contested this decision an appeal to the Court of Queen’s Bench, which overturned the Arbitration Board’s decision to reinstate D.O. Ultimately, the court affirmed her termination, underscoring the severity with which Canadian law treats time theft. Subsequent efforts by the union to appeal this ruling were unsuccessful, resulting in D.O.’s definitive loss of her position.

International Union of Elevator Constructors, Local 50 v Otis Canada, 2017 CanLII 53048 

In this case, an employee was terminated after the company’s GPS monitoring system revealed discrepancies between the employee’s reported locations and the actual data from the tracker. The investigation confirmed that the employee had claimed approximately seven hours of paid work in a week during which he did not work.

While admitting to these discrepancies, the employee argued that there was insufficient work available during those hours. Despite the admission and the employee’s rationale, the employer decided to terminate his employment, citing a breach of trust and past experiences with dishonest employees who similarly misreported their work hours. This decision was aimed at preventing future instances of misconduct.

The Union contested the termination, arguing that it was excessively harsh given the employee’s long tenure, the sporadic availability of work, and previous, more lenient treatment of similar cases of time theft by other employees. Ultimately, the arbitrator deemed the termination excessively punitive. It was important to consider the context of the misconduct, including the employee’s forthright admission and expression of remorse. Consequently, the arbitrator opted for a suspension without pay instead of termination.

Sarens Canada Inc. v. General Teamsters, Local Union No. 362, 2017 CanLII 46446

The central issue in this case was the misrepresentation of work hours by an employee who reported leaving at 5:00 PM, despite actually clocking out at 4:30 PM. The union defended the employee, suggesting that the misreporting could be attributed to a misunderstanding of the company’s policy on rounding up work hours, arguing it was an honest mistake. The Arbitration Board, however, viewed the situation differently.

Given the minimal supervision at the workplace and the independence afforded to the employees, the employee’s actions were seen as a significant breach of trust. Despite the absence of malicious intent, the seriousness of the misrepresentation in such a trust-dependent environment led to the decision not to reinstate the employee.

Nevertheless, the board did recognize that the intent was not overtly negative and awarded the employee five months of salary as compensation. This case demonstrates the importance of clear communication of policies and the implications of employees’ responsibilities in unsupervised roles.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.