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.