Misdemeanor conviction, sexual abuse of minor

bragaw · February 2006

I read the archives but did not get a direct hit on this issue: We hired an engineer recently (no interaction with general public, limited with our customers, at least for now), and one of our employees with small children who periodically checks the state registered sexual offender website for offenders living in her town came across the engineer's picture who was listed as a registered sex offender. He was charged (and convicted--he plead) with 4 counts of MISDEMEANOR sexual abuse of a minor. It happened when he was 20-21 which was about 4 years ago with a minor girl either 14 or 15 years old.

My question: is this grounds for termination?

HR in CA · February 2006

When the engineer applied, did he fill out an application? If so does your applicatioon ask about prior arrests/convictions? If so did he list anything?

bragaw · February 2006

Good question. Our application says, "Have you ever been convicted of a felony? (Convictions are not an automatice bar to employment)." He checked the "No" box.

mwild3136 · February 2006

I looked it up, a misdemeanor is "less than" a felony - meaning that his answer on your application is truthful. I'm not sure you want to go to straight termination - on what grounds? Also, why isn't your company doing background checks prior to the employee starting?

Mandi

bragaw · February 2006

The concern I have is that with this type of crime (moral turpitude), which does not fit within the usual analysis of job duties/position vs. crime, (i.e. crime for embezzlement for position in accounting) you still have an issue of reputation of your company once your company becomes aware of the crime. Also, what if in the future a customer happens to check the state database and decides not to continue contracting based on the engineer's transgression? I'm trying to determine what is in the best interest of the company.

LarryC · February 2006

bragaw, did he serve his time? During same, did he receive treatment? Is he receiving treatment? In your estimation, will he present a danger or detriment to coworkers?

He did tell the truth, albiet not exactly totally upfront about his past.

sonny · February 2006

[font size="1" color="#FF0000"]LAST EDITED ON 02-16-06 AT 11:46AM (CST)[/font][br][br]IMHO, not enough facts. . Maybe it was consensual and the girl lied about her age and then her parents found out. I'd bring him in and ask him.

EDIT Sorry missed the abuse part and was thinking of "just" sex with a minor.

bragaw · February 2006

He did serve his time. Also, he was sentenced to 1 year probation which was nearly revoked because he failed to go to counseling. The revocation request was withdrawn after several months, presumably because he completed his counseling. It is possible that some of our employees may feel uncomfortable which might potentially lead to low employee morale or productivity.

LarryC · February 2006

Sonny raises a good point and the scenerio she proposes happens too frequently. I have employed such people and they worked out great. But we're just speculating at this point, but I would bet she's right. Check it out. Your employees will be more accepting if they know that is the case. If his presence creates too much unrest in the employee group or if you have customers hesitating to do business with you, you'll have to let him go.

But let's see what happens after more truth is known. If something happens, repost, and we'll have at it again.

TN HR · February 2006

[font size="1" color="#FF0000"]LAST EDITED ON 02-16-06 AT 01:55PM (CST)[/font][br][br]I disagree with Larry. He was absolutely truthful with you. Your application simply did not ask enough. If it were me, I would fire him. Four years ago is not that long in my book. You could also google him and search myspace for blogs which might tell you if he's still into sex with teens.

Gene

HR in CA · February 2006

>[font size="1" color="#FF0000"]LAST EDITED ON
>02-16-06 AT 01:55 PM (CST)[/font]
>
>I disagree with Larry. He was absolutely
>truthful with you. Your application simply did
>not ask enough. If it were me, I would fire
>him. Four years ago is not that long in my
>book. You could also google him and search
>myspace for blogs which might tell you if he's
>still into sex with teens.
>
>Gene

I Googled an employee we were having issues with and was overwhelmed with information. After confirming the information, we terminated. I do agree with Gene, he was truthful on the application, but 4 years is not long enough in my book either.

System · February 2006

Just an added suggestion - our application also used to ask for just felony convictions. We have recently changed it to say "have you ever been convicted of a crime, or plead guilty to any criminal offense, within the last seven years?" (We also state convictions don't necessarily bar employment.) Had that question been on your application, he would have had to disclose his misdemeanor conviction, or lied about it. If he fails to disclose, you can refuse to hire, or terminate after you hire if the conviction comes to your attention at a later date. By having to disclose both felonies and misdemeanors or other criminal convictions, you can evaluate at the time of hire whether the conviction is or isn't of material significance to sway your hiring decision. It has helped us tremendously with those issues. You would be amazed at how many applicants answer "no" to that question, wwhich then leads to the decison to not hire due to falsification of application. Very solid in court as well.

Whirlwind · February 2006

Good advice, VPHR

WT · February 2006

As a general rule, third parties look for a nexus in cases with misconduct not at the work site. In other words, what does this have to do with the work? Believe it or not, in union settings, serious crimes such as rape or dealing drugs are not seen as a bar to employment if the misconduct takes place outside of work. That being said, the employer should also look at what could be a nexus. Is there an enhanced risk at the work place, does the work put the employee in a position of trust that can be abused, are fellow employees reluctant or fearful to work with the employee, and particularly, would the actions of the employee outside of the work place damage the reputation of the employer and thus harm the business? Thus, a bank would not hire a convicted thief due to added risk nor would some very conservative and prominent employers hire a convicted drug dealer or a person addicted to pornography due to damage to their reputation.

Whatever · February 2006

He pled to 4 counts of misdemeanor-I'm no lawyer, but it seems to me that when people plead, they are usually saying they are guilty of a lesser crime than the one the committed so they can get a smaller sentence. The problem is that that sentence presumes something about some one I know nothing about. He may actually of been guilty of a misdemeanor not a felony. If it was me, I would have a talk with him after consulting with my attorney (this could be opening a pandora's box). I would want to know what he actually was charged with. In reality, maybe his co-workers shouldn't be uncomfortable in his presence (in my experience, co-workers tend to be uncomfortable around anyone with a record no matter what the charge is). I don't think at this time, you have grounds for termination.

Balloonman1 · February 2006

So how long is long enough before you would hire a sex offender? 4 years is to soon, how about 5, 6, or is 9 years the magic #?
Disagree that it matters what he is charged with....... what matters is what a person is convicted of. Often the maximum charge a DA thinks they have a shot at is used and things are negotiated down from there.

Sonny may be right, I can personally attest to a young lady I met at a club while I was in the army, okay had to show ID to get in, so at least 18 was my thinking....... she was 16. No you could not even begin to guess that. So lets say her dad found out, got bent.......I could have been charged as I was 19+......if the age of consent was 16.......not sure what it was.

Final disclaimer, I am in no way defending sex offenders, I am the father of two great kids, one a daughter. However, when boys are in their late teens early 20's, hard to say that they knew the age of the girl. He served his time, is not in contact with the public, leave it alone.
My $0.02 worth,
The Balloonman

lynn2008 · February 2006

Balloonman is on track.

You best call your attorney, for if I was the engineer and got fired or given other adverse action, I would call mine. Do not play CSI on this case.

I believe that unless you specific policies concerning any crime in place when you hire someone, it would be difficult to win in court.

For instance, I require DMV checks for forklift operators on new hires, and tell applicants this with our rationale that if you can not hold a valid drivers license, I do not want you on my forklifts.

Felonies are tough enough - which ones do you exclude, and for what business reasons. Heck, here in Kentucky about 15 years ago the Governor pardoned a convicted felon who was a business agent for the UFCW and made him Secretary of Labor. He shot out transformers on the meat packing plant that was on strike. Kentucky does not allow felons to be State Officials - only pardoned ones.

Thanks for all the comments on the thread - very informative.

hrdir03nafcu · February 2006

Bragaw,

Wow, lots of conflicting opinions on this one! Not surprising since this is such a hot issue now. My thoughts are:

1) It's clear he did NOT lie on his application: so you can't terminate him for falsifying his application.

2) Unless there's some fairly substantial connection between his offense and the work he performs for your company (that would be, if he is likely to be working with children or underage teens in the course of his job) I don't see where you have any grounds to terminate him based on the prior misdemeanor conviction.

3) I do think it's a good idea to talk to him: get his side of the picture. Also, since the word is already out among your other EEs, it might be a good idea to give him a heads-up about this...he'll probably face some hostility from co-workers. But, again, unless he reveals some connection of his prior offense to his present work, you don't have grounds to fire him.

4) Finally, I'm confident many listserve participants will disagree heartily with me, but here goes. I think ERs have some obligation to be good citizens of the communities they operate in. If all employers refuse to hire people who've been convicted of a crime, regardless of whether the crime relates to the job they've applied for, then where will these "ex-cons" ever be able to find work? The long-term (or maybe not so long-term?) effect is that any conviction in some sense bears a life sentence....and we make it all but impossible for someone once convicted NOT to return to criminal activity once they've served their initial sentence-- since the world of legitimate employment is effectively closed off to them.

System · February 2006

hrdir,
I don't think many in the HR profession would advovcate a total and absolute ban on hiring ex-cons. But convictions due carry somewhat of a lifelong burden - right or wrong. However, we also have to weigh the many complex factors involved in hiring criminals who have done their time. Its problematic on both sides - refuse to hire and it could be deemed discrimination from a legal standpoint (unforgiving from a moral perspective); if you do hire the ex-con and something related to his/her past crime emerges in the workplace, you get nailed for negligent hiring, not to mention the effect it may have on the current employees and the community. It's a balancing act that requires a total review of the facts, the relevance of the offense and the risks it poses to the organization. But I do strongly believe that disclosure of one's criminal history ought to be a required by the organization. But if you don't ask the right questions on the application, you will face the problems that the original post described.

Misdemeanor conviction, sexual abuse of minor

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