Employment Posters

Download the 2012 employment posters required by State and Federal law for free.

« Employment Poster Compliance in Five Minutes or Less | Main | To Fire…Or Not To Fire… »

Why Not Fire an Employee Charged with a Felony?

Last week’s LegalBrief suggested there is no need to fire an employee under investigation for criminal or professional misconduct if law enforcement or a state licensing board is going to solve the problem for you. The question was asked, however, why not fire an employee charged with a felony?

First, if an employee is accused of a serious crime or is under investigation by a professional licensing board, the employee cannot work for you. Suspend the employee without pay until the matter is settled.

The problem with automatically firing an employee is that the termination may not hold up in court. That is why last week’s suggestion of letting criminal prosecutors and state authorities solve the problem for you is so powerful.

What happens if the criminal justice or state investigation system fails to solve the problem?

The fact that suspects can be allowed to plea-bargain a charge to a misdemeanor and thus avoid jail time is a problem. Without a prison sentence, the employee can seek to return to work. This is the reason why employers may want to terminate the employee at the onset. This can also give rise to employer liability.

If you terminate an employee that later pleads guilty to only a misdemeanor, you could be subject to an employment suit. After all, you do not fire every employee that is accused of a misdemeanor (think traffic citations).

What should you do? As stated above, start by suspending the employee without pay. Then, while the state or criminal investigation proceeds, conduct your own independent investigation. Look at all possible connections between the crime and the employee’s job. Talk to co-workers. Document the information you discover. Then come to your own conclusion.

The best investigations are those conducted by independent, outside parties with employment investigation experience and employment law expertise. There are a line of cases from California holding that if an employer relies on an investigation conducted by an outside attorney and the employer relies on the attorney’s conclusion to discipline or terminate the employee, the employer is shielded from liability even if the attorney’s conclusion is wrong.

This way, if the employee is convicted of a felony and sent to jail, the problem goes away. The employee is not available to work for you. If the employee accepts a plea bargain or is found not guilty, you can still make an employment decision based on the results of your own investigation. In a criminal trial, the prosecution must prove its case “beyond a reasonable doubt.” In an investigation, however, your investigator only needs to consider whether it is more likely than not that the activity occurred.

If one of your employees is accused of a crime, proceed with caution. Suspend the employee until the case is settled. Conduct your own investigation. If the employee is not convicted of a felony, then look to the conclusion of your investigation. If the investigation shows misconduct or a threat to your business, your employees or your customers, with experienced legal counsel, you can terminate the accused.

PrintView Printer Friendly Version

EmailEmail Article to Friend

References (10)

References allow you to track sources for this article, as well as articles that were written in response to this article.
  • Response
    Same. The World sucks, and then you blog. The end.
  • Response
    Response: ncAKLLDj
    - LegalBriefs - Why Not Fire an Employee Charged with a Felony?
  • Response
    Cialis (tadalafil) relaxes muscle tissues and will increase blood circulation to certain locations of the system. Buy generic Cialis.
  • Response
    Excellent ideas here, have emailed my mum so expect a big reply!!
  • Response
    Hello could I quote some of the content found in this blog if I reference you with a link back to your site?
  • Response
    Doing some browsing and noticed your website appears a bit messed up in my K-meleon internet browser. But fortunately hardly anyone uses it any longer but you may want to look into it. - If I were two-faced, would I be wearing this one? - Abraham Lincoln 1809 - 1865
  • Response
    So youve decided you need to get yourself a bigger penis. Millions of men world wide have made that very same decision but sadly only a few of them will actually make a real difference to their size. What sets apart the successes from the failures? Well that is all down ...
  • Response
    Your website seems truly great. Being a blog writer myself, I actually appreciate the time you took in creating this write-up.
  • Response
    Response: jack wolfskin
    For this article. I think the authors write very well. Content lively and interesting. Details are as follows:jack wolfskin
  • Response
    - LegalBriefs - Why Not Fire an Employee Charged with a Felony?

Reader Comments (1)

Question - I have a disabled son who was terminated from his employer today as a bag boy in a grocery store because in 2008 he called 911 himself because he was having serious complications with his medications for his disablities and he was afraid he would hurt his sister. He did not touch her. She locked herself in her room until I could get home from work. The police were in a small town and instead of taking him and Baker Acting him, they arrested him. The case was thrown out. HIs termination papers from the store specifically state that he was terminated for not revealing this on his application. I thought only CONVICTIONS and felonies were reportable on an application.
May 9, 2013 | Unregistered Commentermary jane smith

PostPost a New Comment

Enter your information below to add a new comment.

My response is on my own website »
Author Email (optional):
Author URL (optional):
All HTML will be escaped. Hyperlinks will be created for URLs automatically.