EE arrested at work for selling crack

Beave

We are a public entity and recently had a custodial employee arrested at work for selling crack cocane on the job to an undercover officer. The EE bonded out immediately and came back to work the next work day (our attorney advised). I understand the argument about his "civil rights" and having him work for his pay as opposed to having him sit home on a paid suspension. What I am struggling with is the fact that he was selling on our property while we were paying him to do a job. Our attorney advised us not to do anything until his arrignment on the 6th. Anyone been through similar situations or have any suggestions/thoughts?

LeeR

I would go back to your attorney. The level of proof required for a criminal conviction (beyond a reasonable doubt) is a much higher level of proof than that required for an employee termination.

Beave

Our attorney is saying that since the "sale" (actually, multiple sales to an undercover officer) was/were not witnessed by any management personel at that facility, he advises not doing anything until after he has been arraigned on Tuesday the 6th. I was wondering if anyone else has ever been through this and what the outcome was.

ray a

We are a privately held company who performs random drug testing and we can drug test for probable cause. If it were here, I would send him for a drug test and if he failed follow our policy which is immediate termination.

Beave

Thanks Ray. That would certainly solve my problem but since we are a public entity and do not do the random drug testing, unfortunatly random drug testing isn't an option for this situation.

Dutch2

Do you have anything in your Employee Handbook or other policies/regulations regarding an employee having possession of or under the influence of a controlled substance while on company property?
Dutch2

mwild31

Here's what I would do - I would go back to your attorney and ask him/her what they're afraid could happen should you terminate now instead of waiting. This may help you understand "why" the hesitation from the attorney & help ease your mind in regards to the strategy.

Here's a thought, even though it was a bust, it does not mean it was a "good" one & your ee could still get off without any criminal conviction, if he gets off - then your agency/company could face a wrongful termination lawsuit. Also, guilty until proven innocent is still the law - although it's not necessarily socially acceptable now - now, an arrest equals guilt.

I'm on the fence about the paid/unpaid leave/suspension & going back to work - I would rather go the paid leave pending the outcome of the legal case route, rather than having the ee at work, but that's me & not your attorney. For now, follow your attorney's advice.

sonny

Civil rights and earning his pay aside, I would not want this guy at work. I work for a municipality and while we have not had this exact case, we have had a couple where someone one was arrested on ugly charges. One guy was moved so he was not around the public til the issue was resolved. Another was sent home with pay. We just did feel we could expose the public.

Parabeagle

Maybe I missed something, but are your custodial employees covered by a collective bargaining agreement? If so, I'm sure there must be something in the CBA covering a situation like this, i.e., an employee being arrested for allegedly committing a crime on company property. We are a private employer and our drug and alcohol policy specifically permits immediate termination for possession, use or sale of drugs on company property and/or on company time.

As far as sending the employee for a reasonable suspicion drug screen, that may not do any good because in many cases dealers don't use their own product (they're too smart).

Hunter1

I'm public sector also, and here are my thoughts:

One: You should have a drug free workplace policy in place. With/without random or for cause testing, the drug free workplace policy ought to permit termination for posession or sales in the workplace.

Two: I wouldn't want this guy in my workplace. I'd rather explain to my governing body or the public why I suspended the employee with pay "pending the outcome of an investigation" than I would try to explain why the guy is back in the workplace and has since sold to another employee who subsequently has a serious accident on the job.

I'd get the guy out of the workplace, but do it with the agreement of your attorney. That's what you pay them the big bucks for. Give the employee a chance for a hearing according to your policies so you don't run afoul of property rights violations and move on.

SDDCHR

I would definetly get him out of the work place. Couldn't you suspend him without pay until you make the decision to terminate on the 6th? I would think you have substantial reasoning.

Beave

I wanted to keep him from the worksite in the worst way, but based on advice from our attorneys, we are keeping him on the job till his pre-lim hearing on Tuesday. Then I will call him in to conduct a "Garrity" hearing and take appropriate action at that point. This will be my first Garrity hearing by myself - anyone have any advice on what I need to be cautious of?

Don D

"Two: I wouldn't want this guy in my workplace. I'd rather explain to my governing body or the public why I suspended the employee with pay "pending the outcome of an investigation" than I would try to explain why the guy is back in the workplace and has since sold to another employee who subsequently has a serious accident on the job."

I have to agree with the wisdom in Hunter1's remark, above. I give things like this one the 'what if' test. It goes like this; "What if I terminate or suspend the employee...what is likely to be the worst possible fallout of that?" and "What if I don't terminate or suspend the employee...what is likely to be the worst possible fallout of that?" There is nothing that comes to mind that would encourage me to come down on the side of keeping him in place until some future date.

marc

Agree with Don and Hunter1. Don's method of analyzing this resonates well with me. Unless your attorney has some liability exposure analysis that has not been presented, I would lobby for getting him off premises. Suspend without pay for now, you can always reinstate with back pay.

I would bet that you will not get any satisfactory resolution from the arraignment. The EE will plead "Not Guilty" and you will be left with what to do until the trial, which will be months away with several continuances and other delays - maybe for a couple of years, and in the meantime, you are still paying the guy waiting for a trial and a verdict.

I'm all for caution and not needlessly exposing the entity to liability, but ask the two questions Don posed and see what the answers are.

During an election year, you might be surprised at the support you get from upstairs on this issue.

Beave

Thanks for all of your advice. My first reaction when I was told of the arrest was exactly what most of you are telling me - suspension with pay. But at this point in my career HERE (only been here 9 months), I don't feel comfortable going against legal counsel that has been representing the county for many years. At the advice of counsel, I am going to wait till the court hearing on Tuesday (only 2 more work days) and conduct the Garrity hearing. At that point, I intend to suspend without pay pending the outcome of the trial (based on his Garrity statements). I have talked to our prosecutor and his probation officer - our arrest to conviction time here is taking only about 3 months. Even if by some remote chance he makes a "deal" or is found not guilty, our exposure should be minimal. The attorney is cautious of a unjust termination lawsuit - they had one here a few years ago for a similar situation and lost - had to bay back some big money.

Beave

While I would agree that suspension would be a very tidy end to this issue, does it preserve the assumption of innocence prior to the initiation of an internal investigation? Do we normally suspend innocent employees who are not derelict in their duties. Where is the precedent? Up to this point, this employee has performed his job duties exceptionally well according to the department manager.

While one may presume that this trial will go forth as expected, it is not unheard of charges being dismissed.

While I am also sure that our Sheriff's department conducted a thorough investigation, I personally am not privy to the details of this
investigation and can only consider the small amount of information that was brought to my attention - at least until I attend the prelim hearing on Tuesday and conduct the Garrity hearing.

Shadowfax

He has a probation officer as well? What is his criminal history? If probatin officer, then he hasn't completed his last sentence and is subject to violation and return based on the arrest alone. Presumably the arraignment wasw yesterday - let us know what happened. I can't imagine anythng happening at the arraignment to change thigs favorably for you. I understand you have to follow counsel's advice, but it seems overly caustion to me. As a public sector emp/er, you are mandated to ahve a drug free work place polkicy, and it shoyud give you the right to discharge based on a drug arrest. If it doesn't, change the policy. I would not have let the guy back in the door first day; suspend with pay for a day or two until I could review the police reports; then cut him off at the legs. I just don't see what advantage there is to waiting for thngs our of your control to take place. Please let us know whaT happens.

Don D

"While I would agree that suspension would be a very tidy end to this issue, does it preserve the assumption of innocence prior to the initiation of an internal investigation? Do we normally suspend innocent employees who are not derelict in their duties. Where is the precedent?"

Quote above is from Beave. While I'm certainly no lawyer, and you have one who has advised you on a course of action, I'll say that suspension is not by any means a 'tidy end to this issue'. It is merely a stop-gap action in the best interest of the facility and its employees. Nor does suspension speak to the issue of presumption of innocense. There is no accusation in suspension other than perhaps a perceived one by the suspended employee. Only you would know if you normally suspend innocent employees who are not derelict in their duties. Suspension need not be reserved for cases related to job duties. The precedent may not be there at all. But perhaps this is the time to shove it out there. It's a moot point now, but I feel immediate suspension, based on the level of potential in this situation, was in the best interest of your facility, its credibility, all of your employees and the message suspension without accusation would send to the community at large. By not doing so, all you have to deal with now is the perception of the community, your peers, the employees throughout the county, the law enforcement community, your internal and external customers and your own. But the County Attorney, or whoever advised you, will meantime move on to other issues and think no more of it, ever. good luck.

guidedspirit

After your own investigation, along with the police report, immediate termination. Especially since you are a public entity. Do you have an active drug policy? Double check it and if not, create one.

Have a happy new year