Innocent until proven guilty

Do employers have to follow the legal maxim of "innocent until proven guilty" when dealing with employees who have been arrested or charged with a crime? As long as there is no employment contract, agreement, or employment handbook provision to the contrary, the answer is generally no. Nevada is an "employment-at-will" state, meaning that an employer may terminate the employment relationship at any time and without any reason. With that being said, the better question for the employer is: should an employer follow the maxim of "innocent until proven guilty?" The answer to this question likely depends on the gravity of the crime and its relation to the employee's job duties. While a teacher facing a child molestation charge may make for an easy decision, what about a teacher facing a domestic abuse charge?

Employers should be careful when making decisions based solely on arrests and/or charges of criminal conduct. Since many studies show that minorities are generally arrested but not convicted at a rate higher than whites, an employer who looks solely at arrests in making employment decisions could face a disparate impact claim under Title VII from a terminated minority employee. A disparate impact claim arises under Title VII when a facially neutral policy disproportionately harms a protected class of people. To minimize the employer's exposure to a disparate impact claim, it would be wise for the employer to conduct a fair and thorough investigation into the alleged misconduct before making an employment decision. To avoid claims of disparate impact, employers can also focus on the effects of the arrest instead of the arrest itself. For example, while an employer may not want to fire an employee for a drunk driving arrest, if that arrest prevents the employee from going to work, the employer may choose to fire the employee under a no-call, no-show policy instead.

If an employee's misconduct or arrest is job-related, an employer is likely on safe ground to take action. The question then arises as to what is considered job-related. While a charge for embezzlement against an accountant is clearly job-related, other situations may be more difficult to determine. However, even crimes that may appear unrelated at first glance are job-related if they involve violence, dishonesty or moral turpitude.

Another factor that employers must consider when facing the decision whether to take action against an employee who is facing a criminal charge or who was convicted of a crime is the potential for civil liability. In recent years, courts have found employers liable for the criminal acts of their employees under several different theories. If employees have committed a criminal act while in the scope of their employment, employers could face liability under the doctrine of respondeat superior. Further, if employers hire or retain employees with criminal convictions, employers may face a lawsuit on a theory of negligent hiring or negligent retention.

Given the prospect of civil liability, there are several things that an employer should do to protect itself. First, an employer should perform some form of background check on job applicants. A background check will go a long way in proving that the employer was not careless during the hiring process. At a minimum, employers should verify references and information on resumes and should consider asking about criminal convictions on job applications. While some states prohibit inquiring into criminal convictions at the pre-employment stage, Nevada does not. However, the pre-employment inquiry into criminal convictions should be narrowly tailored to accomplish a legitimate business interest. Although a conviction for a traffic violation may be very relevant with respect to a bus driver position, it will not likely be relevant for the job duties of a receptionist. Thus, job applicants should not be required to merely list all criminal convictions. Instead, employers should only ask about criminal convictions which are somehow related to the duties that the job applicant will perform.

Second, employers may consider making employment decisions based on the effects of the arrest rather than the arrest itself. Employees who are arrested may miss work or other required meetings in violation of company policy as a result of the arrest.

Finally, employers should implement and consistently follow written policies addressing how to handle employees arrested or convicted of crimes. Treating employees inconsistently based on arrests or criminal charges will subject the employer to liability regardless of whether an employer presumes its employees to be innocent or guilty.

Ryan Bellows in an associate in the Reno office of the law firm McDonald Carano Wilson and works primarily in the areas of employment law, construction law, and commercial litigation.


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