April 30, 2018
Author: Lorman Education
Scenario - You receive a phone call alerting your company that one of its longstanding employees has been arrested but not charged with a crime?
What can (or Should) you the Employer do?
Before taking any action – Gather Information!
Get as much data as possible about the circumstances and reason for the arrest and/or for the charge.
- Find out when the arrest occurred?
- Find out the reason for the arrest and the potential charge?
- Find out where the arrest occurred?
- Find out if there were witnesses to the event, and if you can, talk to those witnesses?
- Find out if the Employee was incarcerated, and if so, where, and for how long?
- If the employee is not incarcerated, meet with the employee and find out what occurred.
- Get copies of pertinent documents – arrest records – charges – formal indictments, etc.
- Speak to authorities where possible, either police or prosecutor.
So What Should The Employer Do With The Information Obtained? Be careful about who gets access to the information To control gossip, keep the information disclosure limited to those who have a “need to know”
Why?
BEWARE OF FALSE LIGHT INVASION OF PRIVACY CLAIMS
What is a False Light Claim:
Wrongfully casting someone out to be what they are not: Elements of Claim:
- Employer publicizes false information about Employee that places Employee before the public in a false light;
- That the false light presentation would be highly offensive to a reasonable person; and
- Employer had knowledge of or acted in reckless disregard of the falsity and false light in which Employee was placed.
Discipline?
Once you have collected your data, now you the employer can evaluate your options?
Possible Options
Fire the Employee?
Be very careful in making that decision – Remember – there is a big difference between a conviction for a crime v. an arrest/charge for a crime
An arrest is nothing more than an accusation – nothing has been proven, so an employer should always be leery about firing an employee for an arrest.
The same is true of an indictment or other formal charge.
Even when conducting background checks, arrest/charges cannot be given the same weight as a conviction?
Why?
EEOC’s view – Taking disciplinary action based upon an arrest is problematic because a disproportionate amount of African
Americans and Hispanics are arrested, charged, but not convicted of crimes.
EEOC Guidelines – April 2012
- Across the board exclusions are prohibited
- Job-related and consistent with business necessity
- Avoid disparate treatment
- Biased statements
- Inconsistencies in application in hiring/firing process
- Similarly situated comparators
- Avoid disparate impact
- Make sure criminal screening policy or practice does not disproportionately screen out protected class members and the employer can show that the policy or practice is job-related for positions in question and consistent with business necessity
- Factors to consider before disciplining due to arrest
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and/or completion of sentence;
- Nature of the job held or sought;
- EEOC Guidelines require a demonstrably “tight nexus to the position in question.”
- Individualized assessment
- The facts or circumstances surrounding the offense or conduct
- The number of offenses
- Age at the time of conviction or release from prison
- Evidence that individual performed the same type of work post conviction with no issues
- The length and consistency of employment history before and after the offense or conduct
- Rehabilitation efforts, e.g. education/training
- Employment or character references and any other information regarding fitness for the particular position
- Whether the individual is bonded under a federal, state or local bonding program
- If the individual does not respond, the employer may make its employment decision without the information
So what does this Mean?
Decisions to fire should not be made in haste, and should be limited to extreme situations where the conduct at issue clearly impacts and relates to an employee’s position.
Even then, Employer must proceed with caution, and practical considerations along with potential legal fallout must be considered in the process.
Author: Ralph R. Smith III, Esq.
- Shareholder and vice chairman of the Labor and Employment Department of the law firm of Capehart & Scatchard, P.A.
- Concentrates his practice in the areas of labor and employment law, and complex commercial litigation
- Represents companies in all kinds of labor and employment-related litigation in the federal and state courts of New Jersey and Pennsylvania
For more information on this topic, visit www.lorman.com. Since 1987 Lorman Education Services has been providing continuing education for business professionals across the United States and Canda.