Termination for arrest?

tmattern

Currently some members of upper management decided to terminate a HR employee who works for me. Her position entails inputting the weekly payroll, handling all insurance and benefit. She also handles maintaining all the employee personnel files. She was arrested, at work, and spent the day in jail. They charged her with Fraud - use/poss. of indentifying information. She was indicted by the grand jury, but has not been actually convicted of the felony. This is charge is coming from her ex-husband who says she used his social security number to obtain phone service at her home. She sayd she is innocent and can prove it. However, the higher ups went ahead and terminated her because of the incident. In the company handbook it only states that an employee will be terminated if CONVICTED of a felony offense.
Can they legally do that? She even offered to take a leave of absence until her court date in 3 weeks to prove her innocence. They still flat terminated her, giving her a week of pay in lieu of notice.
What reprecussions can we face? I'm trying to figure out if I need to do damage control.

PAhr

[font size="1" color="#FF0000"]LAST EDITED ON 10-09-02 AT 11:34PM (CST)[/font][p] In light of the fact that she is being accused of a crime that involved identity theft (or something similar) and that she has access to a lot more personal info that she could possibly steal from one of your employees, I would say the company clearly has an obligation to protect it's employees from this woman (regardless of whether the allegations are true or not). The company could face legal action from an employee when their info is used to obtain a credit card, phone connection, etc. and the employee finds that the company knew she had a propensity to do this. I am not sure what state you are in but most have a clause that although an employee may not be terminated for a criminal conviction, it can terminate if the employee holds a position where they would have access to things that they have been convicted of in the past. The company most likely feels that it is in the best interest of the employees to terminate this woman and unless she has a contract, she is at will which means the company doesn't really even need a reason. You can always let her know that in her future job hunting the company would be more than willing to give her an excellent reference.

tmattern

Her attorney contacted me yesterday to say he was defending her case and had talked to the D.A.'s and it is more than likely be completely dismissed. Her ex-spouse has a traceable history of making trouble for her.
What should we do now? Can we still re-hire her after the case is dismissed?
She has no history of anything of this sort...so I think we may have a wrongful termination in our future since the whole incident was because her ex-husband still holds animosity towards her. The employee also stated to me that by firing her we are projecting to the community that we think she'd guilty. That could lead to defamation, correct?

Gillian

The fact of the matter is that whether or not this individual is innocent or guilty management has no confidence in her, not a good position for an HR/Payroll person to be in. A separation is best for both parties. You need legal advice pertaining to whether or not your company has violated the rights of this person, and there may be state by state variations. As far as "at will" being a defense, it isn't. There are many reasons why a person cannot be terminated, including terminating someone in violation of a protection that they have. You need legal advice to tell you whether this situation exists or not.

Crout

Since the deed is done, I would wait to see if she files any sort of claim before bringing in an attorney, just to save some revenue. But if you have someone in-house, by all means bounce it off her/him. I think it was a good decision to get her out of HR, but perhaps it might have been wiser to offer her a transfer to another department until the thing resolves. However, if she refused the transfer, I would have definately terminated her, since that would serve the greater good.

pecohr

Feel I need to throw in my 2 cents....

"You can always let her know that in her future job hunting the company would be more than willing to give her an excellent reference."

I think I would refain from telling someone that you have terminated that you would give them a excellent reference. And, I think that I would also be reluctant to give them an excellent reference under these circustances. Any future employer who had and issue with this employee and identity theft would look at your reference and company as less that forthcoming and potentially a place to recoup some of there losses via litigation.

just my view.

Stuart

Roberta

Wow! Tried and convicted on the accusation of an ex-husband with an axe to grind.

I did not find any evidence from your post to lead me to believe that this employee had a "propensity" for lifting others' identities or any other wrongful behavior. What I see, however, is your company jumping to conclusions and firing an employee who probably did not deserve such treatment.

Please correct me if I'm wrong.

Gillian

You are absolutely correct in that this is unfair if in fact she did not do what she has been accused of. The unfortunate outcome of this situation is that management has lost faith in her, and it cannot be regained. This is true whether or not she is guilty. She cannot do her job as she did before so a separation is best for both parties.

Rockie

I'll take a stab at this!

Supposedly, a person is innocent until proven guilty and anyone can be accused of anything and even arrested for it. Doesn't mean they did anything at all. It happens all the time, especially in domestic

I would have suspended this employee pending the outcome of the court case. If the case is dismissed, she is out of a job through no fault of her own. If she didn't do what her ex husband accused her of, she probably will have a cause for wrongful termination, depending upon how your policy is written. If the language is "convicted" of a crime, then you are probably up that proverbial creek.

As far a losing trust in an employee, this is purely an allegation. If she has done nothing while in your employ to undermine her trust, then you don't have a leg to stand on here.

This seems like a case of "jumping the gun" without properly thinking things through. It seems to be, at the very least, to be unfair to the employee.

mets

I agree wholeheartedly with Rocky- and the suspension should have been with pay, I feel. It is not a good representation of responsible management there!
Good luck!

arodriguez

FINALLY! Some common sense advice in this post! Wow... most of the time I find enlightening information from everyone, but this post in particular was flooring me!

Frenchie

I agree with Roberta and Rockie. Management jumped the gun. Put yourself in this employee's place. If she is innocent, she not only lost her job for no reason, but she will have a termination on her employment record which very well could prevent her from getting another good job. Would you want to hire someone who tells you they were terminated due to an arrest for charges she was proven innocent on, or would you assume the employer wouldn't take that action unless there was something more to it. I don't know if she would file a suit, but it sounds like wrongful termination to me.

Crout

I hear the phrase "wrongful termination" bandied about quite frequently, and was wondering if anyone could give me a cogent definition. I think that this phrase qualifies as one of those "HR myths" that came up in a different thread. My understanding is that a "wrongful termination" occurs when a company's motivations and actions in terminating an employee violates an existing law, and in that sense really has nothing to do with fairness, per se. So long as the employer did not violate a law in terminating this person, she does not have much recourse. I agree that she probably should not have been fired, but I also agree with Gillian in that if Management has lost faith in her, she is of no further use to the company, and should be moved.

Theresa Gegen TX

Guess what? Life is not FAIR. And it is not the employer's job to make sure that life is fair. There are many ways an employer can legally handle this type of situation. And terminating the employee, unless it is motivated by illegal reasons (for example, sex discrimination, race discrimination, etc) is a perfectly legal response.

Putting the employee on paid or unpaid leave, until the issue is worked out (and the employee is either exonerated or convicted) is a perfectly legal response.

Doing nothing (although I wouldn't advise it) is a perfectly legal response.

Each of these responses can also be justified. Even if we think that putting the employee on leave is the fairest, terminating the employee can be supported. These allegations go right to the heart of her job duties (using someone else's personal information for her benefit). The company does not have to take the risk with all the other employee's personal information that this might not be true. Quite frankly, I would not feel comfortable with that employee having access to my personal information (of course if I worked with the employee and knew her, I might feel differently). The management of this company may also not feel comfortable with it. The management made a decision, it is a legal decision and a decision that can be justified.

Good Luck!

nancyp

Hope this never happens to me!! Whatever happened to "innocent until proven guilty?" I really feel for her if she is innocent because her life will be ruined due to a "he said." I am also grateful I don't know the name of the company she works for because they would receive a very nasty letter from me. I realize that sometimes life is not fair, but give me a break. Aren't we suppose to help and stand by until proven guilty?

Thanks for letting me get this off my chest.

Paul in Cannon Beach

I know that identity theft is a sensitive subject these days and I also know the government takes things like this seriously. Still, I am a bit suprised you can be thrown in jail for getting phone service. If she had cleaned out his life savings I would understand but phone service?

Regardless, when the case is dismissed, the real damage will be to employee morale when the realization sinks in that all of them are only an allegation away from being terminated whether they are guilty or not.

Trust and loyalty were dealt a blow with this decision in my opinion.

Paul

Pork

tmattern, Teresa may be right, the decision was most likely legal and could be justified; however, if I'm the EE you can bet my attorney is setting the pace and I'm right with him to the EEOC office to make the claim of 'wrongful termination, hostile workplace, and defamation of character' with their "quick to judgement" here. I have been there with the EE and had my identity stolen by a relative, and $43,000.00 later I am still fighting the creditors; it is a night mare. I would hate to think that my company would fire me for a wrong doing, when it was I, that was wronged by my relative. It appears that this may be the case in your situation. "At will" state does mean that management can take the liberty to make a legal decision; however, it does not pay nor defend management for the wrong they caused! Suspending the individual under these circumstances would have certainly been the proper course of action until all the facts are understood. We terminate employees for becoming incarcerated and being unable to make their person available for work, under our attendance policy. Had the management "shot the gun alittle fast" under attendance issue I would not be so ready to say they were wrong. Apparently, they did not use the attendance policy they used a defaming action which made be totally wrong and a smart attorney and a smart EE is going to make sure they pay, most likely, through settlement but I would take it to court and let the jury see this innocent EE who was damaged by the big company smart___ managers. Don't get caught up in this mess by taking a side, but if asked for your opinion you must advise them of their potential damage. Since the EE has already gotten an attorney I would advise my management to get them an attorney. Get out of the way on this one! Good luck Pork

Crout

Pork, you make some excellent points, but I'm not sure what you mean by "defaming action." Could you please elaborate? It seems to me that her attorney may not be so quick to take action against the employer since there was evidence for the grand jury to indict her. An employment action based on an indictment does not seem like defamation to me. What do you think? Thanks.

fish

My only comment is that this has been an incredibly enlightening exchange. I really appreciate having access to sound perspetives on both sides of the issue. Thanks, Fish