In a termination involving an employee's violation of a company theft policy, what does it take for an employer to make its policy stick? A state court in Pennsylvania recently considered such a scenario.

What happened. A full-time health unit coordinator for the University of Pittsburgh Medical Center's St. Margaret Hospital lost her job when the hospital alleged that she violated its theft policy by using drink coupons it provided for the use of patients and their families. The drink coupons were included in information packets given to incoming patients. There was no evidence as to how the employee obtained them. The hospital viewed her use of the coupons as theft because using the coupons for free beverages in the hospital cafeteria resulted in a loss of revenue.

When the former employee applied for jobless benefits, they were denied because the hospital claimed that she had been terminated for willful misconduct. She appealed to the Unemployment Compensation Board of Review, which affirmed the denial of benefits. She then appealed to the state court system.

What the court said. The issue on appeal was whether use of the coupons was a sufficient violation of the hospital's theft policy to constitute willful misconduct. The court noted that the coupons, on their face, didn't state that they were only for patients and also didn't state that they couldn't be transferred. Therefore, the court focused on the testimony of the hospital's witnesses. It found that there was no testimony that the hospital told employees that they couldn't use the coupons nor that it intended the coupons to be used only by patients or their families.

There was also no testimony to support the hospital's position that once it gave the coupons to patients, the patients had no legal authority to transfer them to a nonfamily member or to a hospital employee. If the patients had the authority to transfer the coupons, the court said, it could not agree that the use of the coupons upon a valid transfer by a patient would not constitute legal entitlement. The court disagreed with the Board's conclusion that the employee engaged in willful misconduct because it did not believe that the hospital satisfied its burden of proving that the employee had no legal entitlement to use the coupons. Mancine v. Unemployment Compensation Board of Review, Commonwealth Court of Pennsylvania, No. 2144 C.D. 2007 (4/15/08).

Point to remember: Employers wishing to enforce antitheft policies should consider redrafting their rules to bar use of the property it wishes to protect. Pennsylvania courts have upheld a denial of benefits stemming from a termination for removing a floppy disk drive from a computer which had been placed in the trash. In that case, the employer had a written policy prohibiting the removal of company property, including scrap and trash.