An employee is arrested and something must be done. Do you fire the employee because you don’t want to put up with someone who lands in jail? Or do you wait to get the facts, maybe even wait for the legal system to run its course before making an employment decision?
A related quandary is with how to handle an applicant’s criminal history. Is it OK to ask if a job candidate has ever been arrested? Should you refrain from asking about arrests and instead ask only if the applicant has ever been convicted of a crime? Do you further refine the question and ask only about felony convictions, leaving misdemeanors unreported?
State laws vary widely, and “ban the box” laws — laws that would prohibit employers from asking applicants to check a box if they have a criminal history — are being championed by many. As is the case with so many HR predicaments, easy answers don’t exist, and employers need to know the intricacies of the law in the states in which they do business. In general, though, it’s safer to ask just about convictions since an arrest doesn’t necessarily mean a person is guilty.
Part of sorting through the situation is to consider whether taking action against an employee can lead to legal claims against the employer. For example, employers need to examine whether firing an employee over an arrest can result in a defamation claim against the employer if the employee ends up being innocent.
In an article in the March issue of Nevada Employment Law Letter, Deanna Brinkerhoff and Anthony Hall, both attorneys with Holland & Hart LLP, addressed the issue of arrested employees. They pointed out that employers are wise to watch out for potentially defamatory language in a termination letter or other written or oral statement. It’s important to make sure any statement about the reason for termination is truthful, since truth is the defense in defamation claims.
Arrests are tricky because an arrested employee or applicant may not be guilty, and taking action based on an arrest alone opens the door to a possible discrimination claim if the employer’s action results in disparate treatment or disparate impact.
In April, the Equal Employment Opportunity Commission (EEOC) released new enforcement guidance on the consideration of arrests and convictions in employment decisions under Title VII of the Civil Rights Act of 1964. The guidance summary states that “an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII.” The guidance says, “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin.”
The guidance goes on to explain how disparate treatment and disparate impact are analyzed under Title VII. “A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability),” the guidance summary states.
The summary also says, “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).”
Another issue employers need to consider is the safety of the workplace, particularly if an employee may have committed a violent crime. Christopher P. Butler, a partner with Ford Harrison LLP in Atlanta, conducted an audio conference on the topic in 2011 and explained that employers covered by the Occupational Safety and Health Act (OSH Act) are required to take reasonable steps to maintain safety in the workplace under the Act’s general duty clause.
By taking action under the guise of the general duty clause, “you can actually have this form a basis for explaining a challenge to a criminal background check or for taking some action against an employee,” Butler said. “You can always raise the general duty clause if you have reason to believe that an individual is making the workplace unsafe through some violent act.”
Also, if an employee has been convicted of a crime, the employer needs to consider negligent hiring and negligent retention liability, Butler said. Knowingly hiring or retaining someone the employer knew or should have known could pose a danger could put the employer at risk since some states maintain claims for negligent hiring and retention.
Working with law enforcement
Another issue to consider is how the employer may be involved in the investigation. When an employee is arrested, law enforcement may ask for the employer’s cooperation, Butler said. For example, the police may want to find out if there’s any work computer involvement in an illegal pornography arrest.
Butler said employers should cooperate with law enforcement, but requiring a subpoena or search warrant can protect the employer if the employee claims the employer had no right to allow inspection of the employee’s email, locker, etc.
Also, having a solid surveillance and search policy gives an employer more grounds to defend a decision to allow law enforcement on the premises. “The overarching concern here is that an employee has notice that they have no expectation of privacy, particularly with respect to email and computer networks,” Butler said. “And this is something that needs to be set forth in your policy, not only your search and surveillance policy but also in your email and computer usage policies.”