Termination for a Felony

Mooney · February 2004

I have an issue. We have an employee that cleared his background check and has recently come forward and told his supervisor that he has to serve 13 days in jail for a felony on a possession of a firearm. My employer wants us to terminate him because of the felony conviction. Question is, will we be setting a precedent. Should we from this day forward terminate anyone with a felony conviction? Looking for some advise.

Don D · February 2004

I personally think your company should evaluate the circumstances in light of the job assignment. Mere possession of a firearm, in most jurisdictions, is a misdemeanor, if anything at all, not a felony. And in most jurisdictions,it is no crime at all if not concealed, although in a few it is. Why was it a felony? And even if it turns out to be one, is it of significant impact in and of itself? In other words, what difference does it make? I would investigate to learn why it was a felony. It might have been a probation violation or it might have been something even more serious connected to the possession charge.

But, to answer your question, yes, you'd be setting a precedent. There's no law saying precedents must be followed, however. But, not doing so sets you up. I would think termination for this conviction is over reaction. Are they simply looking for an angle to fire the guy?

LV · February 2004

I agree with Don. I would look at the essential functions of his position and compare those to the convicton. For example, if someone were employed as a day care worker and was subsequently arrested on child pornography charges, termination of this employee would probably be warranted.

Cinderella · February 2004

Is anyone else thinking to themselves....

firearm / felony charge / thirteen days in jail + Texas = HUH? x:-/

mwild31 · February 2004

Interesting question & I'm a little fuzzy myself. I just received my Washington State Employment Law Letter, February 2004 and on page 7 & 8 they talk about whether you can use an applicant's criminal history against them in a hiring decision - if the info comes up in an interview or on the application form. There's some differences between state law vs. EEOC, but I find the EEOC info the most interesting. The article lists instances in which employers VIOLATED Title VII:

An employee was convicted of theft of an $18 pair of sunglasses, 4 years before applying with employer. Decision, was work related, but wasn't a serious offense.

A company didn't hire an applicant for a position because it had a policy of not hiring anyone with a conviction record. Decision, company didn't consider the job-relatedness of the conviction.

An employee was fired for a conviction of unlawful delivery of marijuana. Decision, criminal behavior wouldn't have directly affected his ability to perform the job safely and efficiently.

The EEOC says you can look at this information, but you (the employer) have to look at 1. the nature and gravity of the offense 2. the time that passed since the conviction and/or completion of the sentence 3. the nature of the job held or sought.

I'm regurgitating this information because I'm unclear what to do in a situation where the applicant - actually already works for you and is in fact - an employee. In my policy it states that an immediate dismissal will occur in the instance of a conviction of a felony. Do these same EEOC standards apply, i.e. are they the standards to use for any employment decision (pre-hire and post-hire)? Do I update our policy to consider the nature, length of time & job relatedness of the conviction? :-S

deniseE · February 2004

This is such a tough area....on one hand you don't want to expose your company or fellow workers to any potential danger,....on the other, there is something to be said for getting in trouble, paying for your crime, and working to put your life together. It seems to only increase the liklihood of a life of criminal behavior if the person cannot become gainfully employed following a conviction and serving of the sentence.

We have recently gone through similar issues. Background checks turned up all kinds of things...felonies from 20-30 years ago....recent arrests...i think we were unprepared to deal with the variety of information returned on our ee's.

This employee was very forthcoming with you. Does this conviction impact his job in any way...does he go alone into client's homes, deal with children or elderly? Do you have a policy dealing with weapons in the workplace? Will his time in jail violate your attendance policy?

good luck!

Mooney · February 2004

We do have a no tolorence policy for drugs, firearms, etc. He is a maintenance tech. He is a great worker but of course his 13 day stay in jail will violate our attendance policies because he is not eligible for PTO yet. My employer is adamant about terminating him because of this conviction. If we are going to terminate him I would rather terminate because of the attendance.

Whatever · February 2004

I'm a great believer in trying to be as consistent as possible. Therefore, if it was me I would go with the termination because of attendance.

I am curious-why was this a felony gun charge?

Kathie0554 · February 2004

Check his application. Do you have a line on the application asking if the person has had any convictions in the last few years (we use 5 years). If you do and he checked "no", then he falsified documents and that's also grounds for termination

Passion4HR · February 2004

Terminating him under the attendance policy is your safest bet. We had a similar situation and because the conviction did not have a direct impact on the persons job we used the attendance policy. However, you have to remember you can't use a conviction record unless it has an impact on the position they are in or being hired for. Example: Hiring someone to work on your computer systems that has a conviction for hacking or hiring a convicted child molester to work in a daycare setting- these types of situations have a direct impact on the job and company. An example of something you could not use is; Someone who was convicted of illegally possessing a weapon and they are a maintenance clerk or billing clerk. You would have a hard time using those convictions as reason not to hire or keep somone. My advice- check with your legal counsel. Good Luck!

Don D · February 2004

It was mentioned above that 'There are some differences between state law vs. EEOC'. The chief difference is that state law is law. EEOC is opinion.

mwild31 · February 2004

True. Goodness knows Washington State is becoming the step-child of New York and California when it comes to employment law, but the problem here is that Washington State laws are not yet "cut and dried" in this regard and leave a lot to interpretation and reliance on EEOC for guidance. I was hoping the legal beagles out there could shed further light on the matter. I'm all about caution when it comes to 'gray areas', so I'm thinking I might change the policy to consider the 3 issues mentioned by the EEOC. What do you think Don - bad idea or good one?

Whatever · February 2004

Far be it for me to pick on you Mwild (I leave that Ray), however, I am utterly shocked that you would compare NY to California. Nothing compares to California when it comes to employment law. And many of us are very grateful that we not situated near California because whatever they suffer from seems to spreading. x;-)

mwild31 · February 2004

Sorry Whatever - I'm terribly sorry. It's just opinion & no offense was intended. x:-)

Whatever · February 2004

Mwild - No offense was ever taken. I tried to be appear to witty and failed. Sorry.

mwild31 · February 2004

I thought it was funny, I really did x:D. However, in the event that you didn't mean it to be funny, I took the cautious approach as I value your input & didn't want alienate another forum person. Everyone's so touchy lately.

I love New York although it's more the IDEA of New York as the closest I've been is Bayonne, New Jersey (I was dropping my car off for shipment to Germany) and from the shore I could see the Statue of Liberty.

marc · February 2004

WHAT DO YOU MEAN BY TOUCHY????x;-) x;-)

Whatever · February 2004

I hate to tell you this (this is very painful for anyone from NYC) but the supreme court has ruled that the Statue of Liberty is in New Jersey.

Carey · February 2004

Hey - we have great weather! Don't get me started on employment law or real estate prices though.

Don D · February 2004

MWild and Whatever; I'm impressed by your apologies. But I think a card should follow. x}>

Don D · February 2004

Passion4HR/TN: I'd caution that you not say 'YOU CAN'T' in the scenarios you use above. Your internal rules are one thing, but they don't apply universally. Some companies will absolutely not hire people with convictions that have no relationship to the particular function they are applying for. This correlation that you are drawing is your internal practice and policy only. The EEOC gives some degree of guidance and position comment on these matters and some states may have regulations that serve to limit what can and can't be done; however, across the nation as a whole, this boils down to employer practice and policy 95% of the time.

Termination for a Felony

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