Ask the Labor Lawyer #13 - Criminal History

11/17/2021 by Laura

Good news for freedom-loving employers and job seekers:  we have a temporary reprieve from the Biden administration’s vaccine mandate.  Meanwhile, for your edification and amazement, here is an actual question from a blue state employer.

Q:  One of my employees was arrested for shooting several people over the weekend.  The state declined to prosecute him, and he was released.  Can I fire him?

A:  First, have you considered moving your business to Idaho?

In today’s insane political climate, “justice-involved individuals” have special legal protection.  The decision to fire someone based on their criminal history may be racist, according to the EEOC.  Remember – the EEOC cautions us -- just because someone has been arrested, does not mean that criminal conduct has occurred.  And even if an employee has been convicted of a crime, the employer must still show that the termination decision was “job related and consistent with business necessity.”

Here are some thoughts on your specific situation:

  1. Did the employee violate your attendance policy while in custody?  Most employers have a “no call / no show” policy, where employees who go AWOL for 3 days are subject to termination.  If the employee violated your attendance policy, you can use this reason as a basis for termination, without digging into potential criminal activity.  Make sure your policy is in writing and consistently enforced!

 

  1. Conduct your own investigation. Since the state has declined to prosecute your employee, you cannot rely on the arrest alone to support termination.  However, you have the ability to conduct your own investigation.  Place the employee on leave of absence while you consider the evidence.  Get a copy of the police report.  If you have access to any witnesses (for example, co-workers or family members), speak with them regarding what happened.  Then come to your own conclusion regarding whether the employee committed misconduct.  (Who knows, it is possible he was acting in self-defense!)

 

  1. Conduct an “individualized assessment.” The EEOC requires employers to ask whether criminal history is “job-related for the position in question and consistent with business necessity.”  Factors include (1) the nature and gravity of the misconduct; (2) the time that has passed since the misconduct; and (3) the nature of the particular job.  In your case, assuming your investigation confirmed the shootings, the conduct is grave and happened recently.  The only question is whether your employee’s job is impacted.  If your employee works with customers or co-workers, then violent conduct would certainly impact his job.  The termination decision would be straightforward in that context.

 

  1. Consider a separation agreement. What if the employee works remotely and has very little interaction with customers or co-workers?  Or what if you do not have access to sufficient evidence to evaluate what happened over the weekend?   Termination is riskier in this situation, but may still be important for business reputation and safety.  To reduce the risk, you may want to offer the employee a separation agreement with modest severance, in exchange for an agreement not to sue.

May peace and justice reign, and soon,

Laura, the Labor Lawyer

Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura.  If you have questions for Laura, please send to laura@redballoon.work.  Such questions may be used for general edification in this column.