Criminal Background Checks, Part II

Criminal Background Checks, Part II

This week we are talking about the issue of criminal background checks for employees. Do we perform criminal background checks on new employees and existing employees? If you missed part one of this post, you can read it here. Now the question is what should an employer do if an employee is arrested and convicted for a crime?

You can certainly have a policy that says conviction of certain offenses are grounds for termination. Certainly, incarceration as a punishment for a crime is fairly safe grounds for termination of employment. At the very least, their attendance at work is going to be greatly diminished. So conviction and incarceration are grounds for termination. But what about arrests? It is not uncommon for an employee to get arrested for a crime, such as driving under the influence, possession of drugs or narcotics, or white collar crimes. What is an employer to do if somebody is arrested and charged with a crime, but they are not convicted? That is a difficult policy statement to an arrest by itself grounds for dismissal? Maybe, and maybe not. It is a very difficult judgement call to make, and a gray area to make a policy for.

There is, however, a type of sentencing that comes out of the criminal justice system that is called probation before judgement. I am not a criminal lawyer and I do not profess to be one, but the way that probation before judgement occurs is that typically the defendant must plead guilty and then the prosecutor makes a recommendation to a judge that certain activities take place. For example, if the crime was a DUI, that person may need to go to a drug and alcohol education program, or maybe attend an Alcoholics Anonymous program. This presents a difficult situation because for a prosecutor to offer probation before judgement it does require a guilty plea. The person is not actually convicted in that the judge has said “you are guilty of this crime”, but they had plead guilty to a crime. Now, employers are in a difficult situation. I wish I could offer a blanket methodology or policy for employers to take advantage of or implement, but this may very well have to be handled on a case by case basis.

Certainly, these are concerns that an employer must think about and manage in order to ensure that their workplace meets the necessary standards for a public image and to ensure fairness to all employees. This is an area of policy where consulting an attorney is very wise. It will allow you and the attorney to examine your business in a way that can help you both be fair to your employees but also ensure the security and safety of your staff, customers, and the general public.

As always, you may contact us anytime with questions or to consult on your legal needs.