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Experts: Company has little recourse to reclaim items from ex-employee

Experts say a frustrated manager has little recourse

Experts say a frustrated manager has little recourse to reclaim company property from an ex-employee.  Credit: Getty Images/valentinrussanov

DEAR CARRIE: We had an employee who worked for us for a little over a year. He developed prostate cancer and quit to receive treatment and collect disability. We completely sympathized with his predicament. We asked him to please return our company tees and sweats and our key fob. He lives relatively close to the office. And he keeps promising to leave the items on his deck for us to pick up. He never has. I told him I didn’t think he was being fair.  Then he had the nerve to ask me for some information about his disability benefits. I initially told him I would give him the info when he returned the shirts. But then I decided to be the bigger person and give him the information, provided he would promise to return the shirts. Well, that was about three weeks ago and still no shirts! Do I have any recourse? -- Unreturned Property

DEAR UNRETURNED:  You should be proud of yourself for not letting a problem ex-employee get under your skin.  

But unfortunately, you don’t have great options for getting the items returned, said attorney Kimberly Malerba, who chairs the employment law and digital media practice groups at Ruskin Moscou Faltischek in Uniondale. “The only recourse, beyond sending a formal demand letter for the return of the property, is to file a civil action in court or a police report.”

But those choices may be impractical.

For one thing, Malerba said, “The police may not be interested in pursuing a theft of this type.”

And then there’s the cost factor.

“It may not be practical to bring a civil suit seeking the return of property without any significant monetary value,” she said. “Further, if the company retains counsel to represent it in a civil action, the cost of representation would very likely far exceed the potential recovery.”

But if more costly items had been involved such as electronic equipment or a company car,  “a civil action or seeking assistance from law enforcement may be worthwhile,” she said.

Speaking of do's and don'ts, here is something an employer absolutely must not do, even when a former employee takes the low road.

“A company may not withhold an employee’s final paycheck because he or she failed to return company property, no matter how valuable or expensive the property,” Malerba said.

DEAR CARRIE: I work as a Long Island branch manager for a large international bank. I am considered exempt, meaning I don’t qualify for overtime. But I do not consider myself management.  I consider myself a supervisor. I manage a staff, but I don’t have hiring or firing authority. I can only make a recommendation. I am asked to recommend ratings for my employees, but my area director can change them. I cannot take time off without approval from that person.  But here’s the rub: I am being asked to work more and more hours without any additional pay, and that includes some Saturdays. My question is: What makes an employee exempt?  -- Unclear Status

DEAR STATUS: Based on the duties you described, you probably  fall into the executive category. And if you truly fall into that category, you don’t have to be paid for the extra hours you work. But to be considered an exempt executive, you have to meet all four of the following federal labor law criteria:  You must earn at least $455 a week ($825 in New York); your primary duty must be managing; you must regularly manage at least two full-time employees or their equivalent,  and you must have the authority to hire or fire other employees, or your recommendations “must be given particular weight,” says the U.S. Department of Labor website.

Notice that making recommendations on hiring and firing, as you mention you do, is part of the criteria.  

Go to bit.ly/LImanager for more criteria used to determine if an employee is a manager and exempt from overtime. 

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