Dealing with misbehavior

When an employee or a student breaks the LAW

Employers have a legitimate business interest in learning about their employee’s off-duty conduct since some crimes could be an indicator of a probable workplace security or safety concern, especially in a martial art school environment where there is direct contact with students and students are taught to obey their seniors. The U.S. Equal Employment Opportunity Commission (EEOC) position is that asking applicants about arrests is discriminatory due to the fact that minorities statistically tend to have a higher rate of arrests and convictions, and such inquiries on a pre-employment basis could result in disparate treatment of applicants who are members of a protected class. However, the EEOC does not prohibit employers from taking appropriate disciplinary action up to and including termination when an employee has been incarcerated or convicted of a crime provided that such decisions are made as a result of a valid business interest and the employer’s policies or practices are applied in a fair and consistent manner to all employees.

School owners should consider implementing a policy that specifically addresses the school’s position on arrested/incarcerated employees and students. School owners who do not wish to create such a policy may instead choose to follow whatever policy or practice is currently in place for dealing with unexcused absences.

Before making any decision on an employee’s job status, employers should first consult counsel and consider all available options. Employers must be aware of their employees’ rights, and always act in accordance with them. Making the wrong decision may result in a costly lawsuit, a disgruntled employee, and even a demoralized staff.

Owners should not talk to uninvolved third parties, such as the media or non-management employees. Employers are under an obligation to safeguard an employee’s legal rights, including not harming their reputations. Employees who do not have supervisory or decision-making status should not be included in discussions related to an employee’s arrest. Unnecessary disclosure of information could potentially result in a defamation claim if the employee is later acquitted or the charges are dropped.  

Employment or union contracts may limit an employer from pursuing a termination or other disciplinary action so the terms of these contacts must be checked carefully. An employment agreement may have very specific reasons for termination, and an arrest may not be among them. Taking action against a unionized employee usually must satisfy a ‘just cause’ standard in a collective bargaining agreement. If the union feels this standard has not been met, it might file a grievance and ultimately take the case to binding arbitration, creating a financial exposure for back pay and reinstatement. This may well be the case if the alleged offense occurred outside of work and on the employee’s own time.