Conviction after employment

HollyG

One of our employee was recently sentenced to home sentence probation for insider trading at a previous company. He will be allowed to go to work and home only. We are now wondering what we should do as a result of his conviction. The law states that we cannot discriminate in hiring based on a prior conviction (unless it's related to the job that the employee will be performing, or if it will result in negligent hiring), but I cannot find any information on what should be done after the person has been hired. We looked back on this person's application and found that he had left the area "have you ever been convicted of a crime" blank. He has been a good performer at our company. Should we take any disciplinary action? If so, what kind? If we keep him on the job, does it serve as an example to other employees that if they commit a crime that it will be ignored? If we consider convictions case by case, will that be considered discriminatory?

Rockie

Basically, I would say the same thing would hold true for an employee after hire. If the conviction has nothing to do with his present position, then he may have a case against you if you try to terminate. He was not totally untruthful on his application when asked if he had not been "convicted" of any crime, so you cannot get him for falsifying an application. If this person is in a position of trust, I would have a difficult time retaining him. If he was completely honest, he would have divulged this pending litigation on the front end, but as he probably surmised, you would not have hired him. You may want to get a legal reading on this, but proceed cautiously.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 12-17-01 AT 01:36PM (CST)[/font][p]I agree with Rockie.

The issue for you now is whether the conviction renders the emplyee immediately unsuitable for employment with your company. If he had been sentenced to prison and therefore wasn't able to come to work, then you could have fired him on that basis, if not the nature of the conviction.

But in this case, it looks like the court forced the central issue for you. So, the question is, without knowing exactly what the conviction was for, whether or not -- given what your company does and what his job duties are -- is he no longer trustworthy and suitable for your company (or is he still trustworthy and suitable for emplyment with your company)? Remember, you want to be fair but you also want to make sure that if other employees or job applicants come along with similar convictions, you have a consistent policy and practice.

In passing, I think the court or a probation officer would have discussed the work issue with the company in helping the court come to the sentence that it did. Maybe someone else higher up in your compnay has already decided the issue.

felicia_matthews

You may want to change your employment application to ask if the app has any sentences pending. I think the insider trading conviction certainly has implications that he may not be the most trustworthy or ethical of persons. Based on his position and the nature of your business, you may not want to continue this relationship any longer, or possibly face some wrongful retention issues (if he were to repeat or engage in similar conduct). As an aside, I do not think you should focus on what other employees have to say, as they should never find out this information, or at least not from you.

Gar

You say the employee was recently sentenced. It is possible that at the time he filled out the application, he had not yet been convicted. If such is the case, he did not falsify his application. Also, let your state law be your guide. Unless the crime he was convicted of is related to his current job or can be considered negligent retention, I'd drop the matter. However, I don't see where it would hurt to remind the employee of his working hours and, if such is the case, he's expected to work overtime and if he can't, it could jeopardize his employment.