Now What? Now What? An Employee Broke a Law:

To state the obvious: No matter how efficient your business, it requires people to function … and people make irresponsible decisions from time to time. This includes violating a law. What happens if one of your employees violates a law? Obviously, a lot will depend upon what law was (or might have been) broken and whether they were working when they did (or might have) done so. In addition, violation of a criminal law can have civil liability implications on top of reputational/adverse publicity impact on your business. Further complicating the situation is that you and your managers/supervisors are unlikely to know all of the criminal and civil laws your employees might break. For example, even though I am a native Texan and visit family quite often, I only learned recently that in Texas, no matter who you are or what your job is, failure to report suspected child abuse is a crime (Texas Family Code, Section 261.109). Who knew? Based on my nonscientific survey over the last several months, not many Texans. While no single article can cover every potential situation, you can (and should) have an action plan in place that will help guide your response when the worst happens: an employee commits a crime while working for you and your business. Once you learn of the alleged crime, either because you observed it, law enforcement comes to your business to investigate or you receive a complaint, what do you do?

STEP 1: While the nature of the alleged violation and the employee’s job are certainly relevant, it is normally prudent to start from the notion that the employee should probably be suspended immediately, either with or without pay. When an employee is suspected or accused of having violated a law, whether criminal or civil, there may be a temptation to terminate immediately, particularly if there is an allegation the employee violated a law while performing his/her job duties, so as to avoid adverse publicity or impact on employee morale; however, doing so might

by DOUGLAS H. DUERR

not only result in the loss of an otherwise valuable employee, it could cause liability for discrimination, defamation or the like. In addition, if it turns out that the employee did not actually violate a law, there is the potential for adverse publicity or negative impact on the morale of co-workers because you “acted too hastily without all of the facts.” Initially suspending the employee allows time for gathering relevant information and considering what is necessary to protect co-workers, customers, vendors and the business in general.

This is not to say that taking some lesser action would not also be appropriate. For example, if the employee is not accused of a crime of violence, moral turpitude, etc., it may be appropriate to allow that individual back into the workplace, with or without any special limitations or restrictions. What is important is to take the time to consider the available facts and the potential for further harm by the accused. Additionally, some states have laws regarding employment decisions based solely on the fact of an arrest, and it will be important to ensure that you do not inadvertently run afoul of such a law by hasty action.

Note: If the employee is unable to report to work because s/he is in jail, you normally should, and can, apply the normal attendance policies so long as you do so consistently. That is, if an employee can normally take leave with little or no notice, then, even if calling from jail, the same privilege should be afforded to the jailed employee.

STEP 2: Investigate whether the employee did violate a law or engage in lessor conduct that should lead to corrective action, including termination. While, obviously, you will not be conducting a criminal investigation, you will need to have someone (or several) individuals who are qualified to look into the facts, including interviewing the employee and any witnesses or liaising with government or other officials. If there are criminal allegations/charges, the employee may be less willing to participate in the investigative process; however, while the conditions of parole usually prohibit a charged individual from communicating with the alleged victim(s), any potential co-defendants and any potential witnesses, there are seldom any other legal requirements prohibiting an employer from interviewing the employee to ascertain at least his/her version of events. (Note: if your business is a potential victim of a crime or the employee is accused of committing a crime as part of some conspiracy with the business, then the employee might in fact be prohibited from participating in your internal investigation.)

STEP

3:

Once you have gathered the available, factual information, examine the nature of the employee’s job, the alleged violation(s) and the available facts. Is there a sufficient job-related connection between the alleged (or actual) violation of the law and the employee’s job duties, such that continued employment poses a sufficient risk of harm? For example, if the employee is a server and is charged with providing alcohol to an underage individual, the connection is obvious; however, if the employee is instead a cook with little or no access to customers, perhaps not. Likewise, if the employee is charged with DUI or some other offense involving a motor vehicle and has no driving duties, the lack of a jobrelatedness connection is also obvious.

Importantly, even in the absence of a clear job-related connection between the alleged violation of law and the employee’s job duties, there may be an incentive/temptation to avoid the continued employment of someone the community perceives as “undesirable” because of an alleged violation of law. While most individuals are employed “at will” and can thus be terminated for any lawful reason and could generally thus be terminated because of the adverse reaction of patrons or the community at large, such termination would create liability if it were discriminatory on an unlawful basis. For example, if an individual is accused of child molestation, does the community react more firmly when the accused is male whereas more willing to excuse (or await a final conviction) as a potential misunderstanding when the accused is female? Here, consistency on your part will be critical in avoiding claims of wrongful termination based on unlawful discrimination.

In considering whether to terminate an individual based on a violation of law, it is important to have a plan for interim measures to protect others and your business, to investigate the circumstances and then to set upon a final course of action. While you probably prefer not having to make any final decisions until after an employee has been proved to have violated the law or not, such is often not a realistic option as that could take months if not years. Because terminating an employee prior to a final adjudication (remember to be mindful of state law restrictions on taking actions based solely on an arrest) thus has risk of creating liability from claims of discrimination, defamation or the like, it is important to gather all the facts you can and take the time to reach a considered decision. n