criminal-law employment civil-law theft
Why is stealing from an employer a criminal act when stealing from an employee is a civil act?
<p>Here is the full question with all the context and details:</p>
<blockquote>
<p>In the majority of cases in the U.S. about theft at a workplace, why is the matter usually tried in a criminal court when the employer is stolen from, yet is tried in a civil court when the employee is stolen from?</p>
</blockquote>
<p>For example, if a bank owner refuses to send the last paycheck to someone who has just quit or been fired, it has to be fought in civil court. If a bank employee sneaks extra money from the branch, it has to be fought in criminal court.</p>
<p>The following comments or something similar may be made, so I will address them before they are made:</p>
<ol>
<li>The reality for both examples above is that most of the time, it is not fought in court at all, and the injustice is just allowed to pass.</li>
</ol>
<p>I'm talking about which court it would be brought to, only considering all the times that the matter is actually brought to court, so this is an irrelevant point.</p>
<ol start="2">
<li>The answer is as plain as day. It's because &quot;bill 9, section 9, article 6, subarticle 7, clause 45&quot; says so, you can read the legal document at this reference.</li>
</ol>
<p>I know it's because the laws say so, I'm asking why the laws say so. What is the legal history behind this imbalance, and why have things become the way they are today?</p>

<h2>Because one is theft and the other is breach of contract</h2>
<p>Theft is taking someone’s property with the intent of permanently depriving them of it. It has always been a crime, in fact, it’s a toss up whether theft or murder was the first crime ever.</p>
<p>Not giving someone something you lawfully owe them but that they never possessed is not theft because it lacks the dispossession aspect required of theft. That’s simply failing to pay a debt and that is just breach of contract. Now, there was a time, back in the nineteenth century when not paying your debts would land you in debtors prison but society moved on.</p>
<p>Now, there are jurisdictions (<a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a>) which are considering making wage theft, the deliberate and systemic underpayment of workers a crime. Perhaps society is moving on again?</p>

<p><strong>Why is stealing from an employer a criminal act when stealing from an employee is a civil act?</strong></p>
<p>The question is based on a false premise: stealing from an employee <em>is</em> a criminal act but a breach of contract (e.g., withholding wages) is/maybe a civil wrong so not necessarily theft.  However if an employer takes and retains an employee's property (e.g., cash from a wallet) without consent then it might be theft.</p>

<p>What do you mean by &quot;stealing&quot;; this matters, because &quot;stealing&quot; often doesn't have a formal/legal definition (and when it does, it falls under your #2 point above, where the employer's action doesn't meet the definition of the forbidden act) and can describe conduct by both parties that could fall under both criminal and non-criminal remedies (i.e. civil and/or administrative action).</p>
<p>Some examples:</p>
<p><strong>Employer criminal stealing</strong>: Taking an employee's property from their possession (e.g. taking cash from their wallet).</p>
<p><strong>Employer non-criminal stealing</strong>: Failing to pay an employee properly* (either not paying, or not paying completely, or not paying on time), unless fraud is involved, which usually involves not intending to pay the employee from the start, but that is still not necessarily <em>theft/stealing</em> as such, depending on how that is defined.</p>
<p><strong>Employee criminal stealing</strong>: Taking an employer's property from their possession (e.g. taking cash from a till)</p>
<p><strong>Employee non-criminal stealing</strong>: Failing to work properly (e.g. taking an unscheduled break while on the clock, essentially charging for work not done)</p>
<p>'* Note that despite what you might think, an employee isn't exchanging labor for money; instead, they are exchanging their labor for a debt by the company, to accrue until and be paid by understood dates, i.e. payday (for example, I'm paid biweekly, so my pay accrues for a window of two weeks, and then is paid on the following Friday, so I may work the 1st through the 14th, and then be paid for those days on the 21st);</p>
<p>By way of analogy, imagine I went to a store and pick something up, and leave the store with it. If I don't pay, its criminal theft/&quot;stealing&quot;. If I unknowingly pay with a bad check, I owe the store a debt, but no crime has occurred (i.e. its a civil matter). If I knowingly pay with a bad check, that is criminal fraud/&quot;stealing&quot;. If I pay with a credit card, then a three-way transaction occurs, I get the store's merchandise, the store gets the CC company's money, and the CC company gets my debt (and it is debt, because I don't have to pay all of it immediately). If I fail then to pay my CC debt, that is a civil matter.</p>

<h2>Your premise is false.</h2>
<p>At least it is, in the normal free-market systems that have swept the world (even communist bastions like Russia and China) due to their practical effectiveness at making societies wealthy at every level.  Some people don't like that system because either they are very contrary people, or because they are not competent experts at macroeconomics.  Misinformation, disinformation or denialism is the fuel such thinking runs on.</p>
<p>To start, you are equating things which are not equivalent: a deliberate, &quot;malice aforethought&quot; <em>stealing from the till</em> by a human employee, versus an earnest &quot;expected to be able to do the right thing, but a genuinely unexpected business reversal or system glitch got in the way&quot; problem.  We'll revisit that difference.</p>
<p><em>But even more than that, <strong>wages are special</strong></em>.  A wage isn't any random business debt; it is a priority debt that a business must pay ahead of other creditors.  So the free-market systems actually do give great deference to a wage.</p>
<p>So in part, <em>the premise of your question</em> is propaganda: trying to curse the free-market system by painting a false social injustice.</p>
<h2>Corporations don't commit crimes. People do.</h2>
<p>Or... you can't throw a corporation in jail, and you wouldn't want to anyway.</p>
<p>(You can bring criminal <em>money fines</em> down on its head, but that's about all that's possible).</p>
<p>A corporation an artificial &quot;shell&quot; or &quot;shield&quot; that allows the business to be treated as a separate &quot;person <strong>for tax and CIVIL liability purposes</strong>.  Read a book on starting your own corporation, and you will get a good briefing on the limitations of the &quot;corporate veil&quot;.   <strong>It doesn't work on crimes.  Prosecutors ignore the &quot;corporate veil&quot; and arrest the humans</strong>.</p>
<p>So your premise that things go better for <em>corporate</em> criminals than for individual criminals is simply wrong.  If anything, corporate criminals have greater exposure,  because within a corporation, conspiracy has usually happened too, and that's a separate crime.  The conspirators find themselves in the <a href="https://en.wikipedia.org/wiki/Prisoner%27s_dilemma" rel="nofollow noreferrer">&quot;Prisoner's Dilemma&quot;</a> and it becomes a footrace to see who rolls over first.</p>
<p>I'll grant you things seem to go lighter for those arrested for corporate crime...  but that has nothing to do with favorable treatment and everything to do with a) the type of crimes people commit within corporations (vs. the type the common street thug commits); and b) the fact that corporate activities are usually done with the consultation of lawyers and CPAs, both pre-crime and post-crime. <em>After all, consulting with CPAs and lawyers <strong>before you act</strong>, when you are uncertain about the legality of an action, <strong>is what the system wants you to do</strong>.  So the system is reluctant to punish someone who <strong>did</strong> consult counsel, and whose counsel simply got it wrong.</em></p>
<h2>The difference between your cases is <em>intent</em>, or <em>mens rea</em></h2>
<p>The keystone element of a crime is &quot;mens rea&quot;, or &quot;guilty mind&quot;.  This is the intent to commit a crime.</p>
<p>When you, as an employee, steal from the till -- you know it is wrong, you have resolved to do it anyway, and you do it.</p>
<p>Whereas in the case of the wages, the company entered into the employment relationship <em>with every legitimate intent</em> to pay the offered wage.   And something went wrong; the business suffered difficulties that were not reasonably expected; and they were unable to.</p>
<p>If that were not the case -- if the employer entered into the employment relationship with a &quot;guilty mind&quot;, lying and never intending to pay a wage in the first place - then yes, that is fraud, and it has criminal consequences same as when you steal.</p>

<p>The question is a false equivalence. The correct equivalent to the employee stealing from the bank's register would be the bank manager coming over to the employee's house for dinner and stealing some money from a drawer when he's not looking. Both would be prosecuted as theft in a criminal court.</p>
<p>Not paying your last paycheck is informally called &quot;theft&quot; in the same way people say &quot;taxation is theft&quot;. You can argue all you want about which definition of &quot;theft&quot; you prefer, but the courts and police enforce only one definition - the one given by the law. Usually, that definition does not apply to withholding your last paycheck, but does apply to taking money out of the register.</p>

<p>Your wages are the company’s money. They <em>owe</em> you payment, and they can get into all kind of trouble if they don’t pay, but not for theft.</p>
<p>On the other hand, in many countries the employer has the duty to send your income tax to the tax office. And in many countries, your income tax is <em>your</em> money. Not sending it to the inland revenue <em>is</em> theft (or embezzlement if that is a separate crime). Having a limited liability company doesn’t protect the company owners. In some countries, not paying employees taxes will get the company closed down very quickly.</p>
