Crimes and Misdemeanors

Andrew t., an eight-year veteran driver for a mid-sized waste hauling firm, was arrested on attempted rape charges. He spent five days in jail before his brother could post a bond that allowed him to remain free pending trial. During the time he was locked up, he missed a company-mandated physical exam. The charges against him were later dismissed after the alleged victim came forward and told police she had fabricated the story to get even with him on a personal matter.

Besides losing pay for the time he was away from work, Andrew lost his job. The company fired him, insisting that the reason was the missed exam and not the criminal charges. Andrew chose not to go to court to get his job back, but his decision seems to buck the trend.

Many companies fear that if they take action against an employee who is charged with a crime but not ultimately convicted, the worker will sue. Employers are in a bind when dealing with employees who miss work because of unsubstantiated criminal offenses. After all, our society is based on the premise that someone is “innocent until proven guilty.”

But, if a company allows an employee who has been charged with assault to stay on the job, the employer risks civil liability if that worker later attacks a co-worker or a customer. Similarly, if a truck-driver employee has been charged with drunk driving, a company may be justified in terminating the employee — even if the arrest took place during the worker's off hours — particularly if no other suitable work is available.

Generally, employers have a right, if not a legal duty, to protect their workforce, customers and the general public from known risks, which include employees who may act irresponsibly. The one-bite rule applies in some states to protect the owner of a domestic animal from charges that he permitted a dangerous critter to roam free. (After the first biting or attack incident, the owner is deemed to know the vicious characteristics of the animal.) However, the one-bite rule does not apply in the employment setting, nor does the presumption of innocence.

With a few notable exceptions based on union contracts and other written agreements, the prevailing rule of law throughout the United States is that employers can terminate employees for any reason except discrimination and absences for jury duty. A few states — Wisconsin and California, for example — have laws on the books that limit a company's freedom to reject a worker based on an arrest record or pending criminal charges.

Just because an employee was acquitted on criminal charges does not necessarily eliminate a potential problem in the workplace. The acquittal may mean only that a jury did not believe the charges beyond a reasonable doubt. They might still have found that the accused, more likely than not, did what he was charged with doing. If the charge was a violent crime, an employer could understandably be reluctant to expose customers to him.

Experts advise employers to deal with employees and applicants charged with crimes by applying discharge and no-hire policies consistently.