DTUS1710

ee misconduct. The scope and manner of the investigation will depend in part on the size and complexity of the theft. Of course, as with any investi- gation, the employer’s rights and abilities to investigate the facts and circumstances surrounding the incident are intertwined with the myriad of rights and protec- tions conferred upon employees by federal and state law. An often-discussed issue is whether a dishonest employee’s pension or profit-sharing plan may be seized in order to repay the amount of money that was embezzled. The Employee Retirement Income Security Act (ERISA), as construed by the courts, may very well prohibit any type of garnish- ment, attachment or constructive trust regarding an employee’s pension or profit-sharing plan, even if an employee is terminated for embezzlement. However, an employee may vol- untarily request distribution of his or her plan in order to repay the amount that was stolen. Extreme care must be used in order to avoid any type of undue coer- cion or duress should this path be undertaken. Recovering the losses Depending on whether the loss is covered by your insurance poli- cy, and if so, the amount of the deductible, the owner of a den- tal practice may wish to file a civil action against the dishonest employee in order to recover any type of loss. However, the prospects of recovery (depending on the wrongdoer’s assets) may not jus- tify the costs of litigation. Another avenue to consider is criminal prosecution, which can be a very slow process. It is impor- tant to note that civil lawsuits and criminal prosecution are matters of public record, and as a result, you must weigh the consequences of any adverse publicity. Summary In today’s marketplace, employee embezzlement is rampant. How- ever, with a little precaution, the financial hardship of employee embezzlement can be avoided. In addition, with proper employ- ee screening, proper control and oversight, as well as prudent financial control, a devastating financial loss can be avoided. DT Practice Matters DENTAL TRIBUNE | July 20108A f DT page 6A AD About the author Stuart J. Oberman, Esq., has extensive experience in repre- senting dentists during dental partnership agreements, partner- ship buy-ins, dental MSOs, com- mercial leasing, entity forma- tion (professional corporations, limited liability companies), real estate transactions, employment law, dental board defense, estate planning and other business transactions that a dentist will face during his or her career. For questions or comments regarding this article, visit www. gadentalattorney.com. The average amount of employee embezzlement from a dental office is approximately $105,000 per incident.