Ruling to be issued Feb. 21
An Aspen judge said Tuesday that she will rule next week on whether a man accused of stealing cash from his former employer can collect back wages and if the man is liable for counterclaims that the business has filed against him.
Judge Erin Fernandez-Ely of Pitkin County Court told Joseph Kern that his small-claims lawsuit against the parent company of CP Burger, from where he allegedly took more than $2,000 in cash, contains “quite a few interesting issues” about wage disputes.
He maintains he took the money from the burger joint’s safe in October because he was owed wages from his stint as the director of operations of five Aspen restaurants owned by the defendant.
But Kern was arrested and is charged with two felony counts of burglary and a felony theft count. Fernandez-Ely acknowledged that if she rules that he was entitled to the money, it could impact his criminal case because the ruling would show he did not intend to “permanently deprive” his former employer of the cash. That is a key concept in proving a theft count.
“This happens all the time,” Fernandez-Ely said of labor disputes.
Kern’s attorney, public defender Laura Koenig, attended the hearing.
Kern testified to a judge in another proceeding that, prior to his arrest, he was on a drinking bender for a few days and had little memory of his actions.
Samantha Cordts-Pearce, the co-owner of the restaurants, told Fernandez-Ely that she and her husband are “quite frustrated over this whole situation.
“We think that we kind of saved Joey’s life in a way,” she said. “We don’t know what he would’ve done. ... Enough’s happened, and we don’t want to be sitting in this courtroom.”
Cordts-Pearce, on behalf of her company, is seeking $5,614 in damages through the counterclaims. Kern says he is owed $5,230.76.
In response to a question from Kern about whether Cordts-Pearce’s counterclaims were in process against him before he sued her company, she said no.
“We would’ve let it go,” Cordts-Pearce said. “He’s in enough trouble.”
But now she is seeking the money, alleging that her company has incurred expenses in re-keying the restaurants, buying new safes and taking care of other business that Kern had been handling.
Fernandez-Ely, citing state law, said employers, in most cases, must immediately pay employees upon termination. But the employer does have some rights in cases of theft, she said.
If a police report is filed for theft, an employer can deduct the amount allegedly stolen from the final paycheck. If the former employee is found to be innocent, however, they are “exonerated from [civil] penalties,” Fernandez-Ely said.
“He cares so much about the law when it comes to labor, but we’re sitting here because he robbed us,” Cordts-Pearce said. “It’s just ludicrous to me how the law can protect somebody who robbed you.”
But Fernandez-Ely said both sides have rights.
“If someone steals your car, you can’t beat them up,” she said.
Fernandez-Ely said she wanted to review labor laws further and will issue her ruling Feb. 21, which is also when Cordts-Pearce’s restraining order against Kern will be reviewed.
chad@aspendailynews.com