Q. Last Monday, one of our employees called and said he'd been arrested but couldn't tell us anything more because his lawyer said he shouldn't talk about the situation. We placed an ad for a replacement employee.
A lot of great candidates responded to the ad. The next day, "Jim" showed up at work, clearly expecting to resume his duties. We asked him what was going on and he said he was out on bail and the whole thing was a huge misunderstanding between him and his former girlfriend.
We really didn't know what to do so we let Jim go back to work.
While we didn't have a problem with Jim, we're not sure we want someone around who's been arrested, particularly if we don't know the details. Also, two or three of the applicants have great qualifications and we'd actually prefer them.
Can we just tell Jim we've lost faith in him and hire a replacement? Or is there some law that protects Jim's job?
A. The covenant of good faith and fair dealing protects Jim and every other employee in Alaska and requires that you act fairly.
However, if Jim's legal problems prevent him from doing his job, you have justification for placing him on leave without pay or terminating him.
In fact, if you believe Jim might endanger his co-workers or customers, you have a corporate duty to act.
However, if Jim has been a good worker and you fire him simply because he's suspected of something he didn't do, he can sue you for wrongful termination.
You had reason for posting Jim's job, when he called to advise you of his situation. And Jim had reason to expect he still had a job when he reported to work the next day with no discussion of the matter.
Right now, you don't know Jim's real story but you can find out considerable information. For example, because you gave me Jim's name and age, I looked him up on CourtView, Alaska's public trial court records. Jim has a history of domestic violence charges, none of which have resulted in a conviction. This means Jim has some level of problem, or at least chooses the wrong friends.
According to attorney Bill Evans, "Because Alaska has extraordinarily high per capita rates of domestic violence, many businesses find themselves hurt by employing either a victim or a perpetrator. Employers should prepare in advance what sort of support they will offer employees who are victims and how they plan to handle employees who become accused. Because domestic abuse is a crime of violence, employers need to ensure they protect their workplace."
Employers also need to remember that arrests don't equal convictions. Says Evans: "The Equal Employment Opportunity Commission maintains discrimination on the basis of race can result from acting on an 'arrest' as opposed to a conviction due to a disproportionate rate of arrests among certain racial minorities. Employers faced with determining the impact of an arrest record need to move cautiously and assess if the arrest is an anomaly or evidence of a troubling pattern."
If you have personnel policies that define your relationship with your employees as "at will," meaning that you can fire an employee for any or no reason, you can use employment at will as a reason for dismissing an employee in whom you've lost confidence. Because you didn't lose confidence until Jim's private legal problems surfaced and you found applicants that seem to be better choices, Jim might have recourse against you. Although he has a weak case, both courts and juries believe in fairness and this can trump an employer's ability to fire at will. Further, you need to remember you haven't checked these applicants' references. After all, Jim might look good on paper as well.
Evans suggests you place Jim on administrative leave and sort out what you want to do. This gives you time to consult an attorney or HR expert.
Finally, in cases such as this, employers often choose to buy their way out of trouble by meeting with an employee they no longer want and offering severance in exchange for the employee's resignation and the signing of a waiver of rights. If you take this route, remember that Jim worked for you without incident and be generous in your severance offer. Also, before you hire another potential problem, conduct a full reference check and check CourtView.
Lynne Curry is a local management trainer, consultant and syndicated columnist. Her advice and opinion column appears Mondays. Questions for her column may be faxed to her at 258-2157 or mailed to her c/o Anchorage Daily News, P.O. Box 149001, Anchorage 99514-9001. Her e-mail is lynne@thegrowthcompany.com.
LYNNE CURRY
MANAGEMENT