Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
A current employee has been accused of a sex crime and has been released on bond.Can we legally place him on leave until he has been proven guilty or innocent?
posted at 7/10/1999 7:02 PM EDT
Well, let me start by suggesting that the answer to this question really requires your company to retain and consult with an attorney. Even then, all that attorney will be able to give you is his or her best estimate of what a judge or jury would do if a claim was filed. If I was the attorney advising you, I would remind you of a couple of things.
First, under the employment at will (EAW) doctrine, an employer can fire (or suspend, or discipline, or refuse to hire) a person for a good reason, a bad reason or no reason at all, so long as it is not an illegal reason or in breach of contract.
Second, there could be many "illegal" reasons or "contracts" which restrict your ability to take adverse action against the employee. For example, some union collective-bargaining agreements require "just cause" for any disciplinary action. Many fact-finders would find that the mere allegation of wrongdoing (i.e., a charge) did not constitute "just cause." Furthermore, unless the crime charged were somehow related to the employment relationship (i.e., happened at work, involved a co-worker or customer, or employee had a special relationship of trust), even if the employee "did it" (i.e. was found to be guilty) an employer may not be able to take action against the employee.
Third, some states have laws which expressly prohibit an employer from taking adverse employment action on the basis of a criminal charge, absent conviction (and then only if job-related).
Bottom line, you'll want to consult with an attorney. If you would like a referral, feel free to contact me.
Matthew T. Miklave, Esq.
Epstein Becker & Green, P.C.
250 Park Avenue
New York, New York 10177
(212) 661-0989 (fax)