Can my husband be sued for theft if he accidentally took a USB when fired, but returned it?

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Can my husband be sued for theft if he accidentally took a USB when fired, but returned it?

My husband was suddenly
terminated and given 10 minutes
to clear his things. He
accidentally took a USB with
backup files on it, but didn’t
realize it until former boss
called looking for it three
weeks later. He immediately
mailed USB back, but now we’re
worried they’ll sue us, or at
the least, deny severance and
unemployment. It was an honest
mistake, but former boss was a
toxic ‘gotcha’ kind of boss and
we’re worried about his
intentions now. What can they
legally do to us?

Asked on April 3, 2016 under Employment Labor Law, Wisconsin

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Accidentally taking something is not theft: theft requires criminal intent, and sending it back once you realized that he had is strong evidence there was no criminal intent. If your husband had not returned it, he could be sued for its value, but you did return it. So long as he did not copy, keep, and/or use any proprietary or confidential business information, etc. from the disc, there should be no grounds to sue.
Taking the drive has nothing to do with unemployment; the only issue there is whether your husband quit or was fired "for caue" (e.g. for wrongdoing), in which case he cannot get unemployment, or was terminated not for cause (e.g. poor performance--which is not wrongding for this purpose--a personality conflict, a RIF, restructuring, etc.), in which case he is eligible.
Severance is voluntary on the part of employers: no law makes employers grant severance to terminated employees. So it's completely up to the employer whether to give severance or not, and they can decide to not give it for any reason--unless, that is, your husband had a contract guarantying him severance under these circumstances, in which case, if he does not get severance, he could sue for breach of contract.


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