We have an employee who was hired on a temporary 90 day probabtionary period and was recently indicted for assualt/armed robbery.  He is out on bail right now.  Our thoughts are obviously for the safety of our other employees and we wish to terminate his employment, which is "at will".  However, say he is not convicted of the felony.  Would there be any legal action that could be taken against the company for wrongful termination?

Thanks a bunch!

new2hr:

We have an employee who was hired on a temporary 90 day probabtionary period and was recently indicted for assualt/armed robbery.  He is out on bail right now.  Our thoughts are obviously for the safety of our other employees and we wish to terminate his employment, which is "at will".  However, say he is not convicted of the felony.  Would there be any legal action that could be taken against the company for wrongful termination?

 

Thanks a bunch!

There are a couple of important things to recognize here.  The first has nothing to do with the employee but with your policy setup.  Various people have written at length on this but if your employees are "at-will", meaning they can be fired for any non-illegal reason or no reason, then that's what they are.  Having a "probationary period" actually brings into question the at-will nature of your employment relationship.  If they're at-will, they're at will and you shouldn't complicate matters by labeling a period with something like "probationary period".  There have been successful different labelings of this "introductory period" but I have never heard of one that satisfied any need other than the obsession of a person who just simply could not live without some sort of preliminary period with a label despite its overall legal irrelevance but they just had to have one and needed to call it something that wouldn't interfere with the at-will nature of the employment relationship contemplated by the employer.  So, first thing's first: get rid of your probationary period and prop up everything that indicates the at-will nature of employment in your written materials.

Next, there can be problems with making hiring decisions on the basis of non-convictions at the federal level and there can be state laws that play a role, also.  First ensure that the act is not barred so that if you do make a move, you are not going to later get hit with an allegation that whatever your stated reason for separation may have been, it was really for the indictment ("pretext").  If there is no problem, consider using a settlment and release.  Consult an attorney who is familliar with federal and state employment law in the state where the employee works for your Company.  No easy answer here that I am aware of.

I agree with TXHRGuy about dropping the probationary period and with his warning about the danger in terminating the employee based on an arrest. If you use arrests to make emplyment decisions, you run the risk of a discirmination suit because minorities could be disproportionately affected by such a policy. People are arrested all the time, but you cannot infer guilt based merely on an arrest.  The EEOC "concludes that since the use of arrest records as an absolute bar to employment has a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment. However, conduct which indicates unsuitability for a particular position is a basis for exclusion. Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified."

http://www.eeoc.gov/policy/docs/arrest_records.html

http://www.eeoc.gov/foia/letters/2005/titlevii_arrest_conviction_records.html

Thanks for the info.  The 90 day thing is just that they were hired as temps and would not be eligible for perm. employment until 90 days.  They were all given written statements regarding "employment at will"

What we ended up doing was putting the employee on suspension pending the outcome of the indictment.  Considering he was charged with assault and armed robbery, we are concerned for the safety of our employees.

 Thanks again!

new2hr:

Thanks for the info.  The 90 day thing is just that they were hired as temps and would not be eligible for perm. employment until 90 days.  They were all given written statements regarding "employment at will"

What we ended up doing was putting the employee on suspension pending the outcome of the indictment.  Considering he was charged with assault and armed robbery, we are concerned for the safety of our employees.

 Thanks again!

Recommend checking with counsel if you are suspending without pay.

I still wouldn't call it probationary period or I would definitely define in the handbook for which you collect a signed receipt exactly what is meant by probationary status.  Personally, I like things very tidy in this regard.  People who are hired on a temporary basis are just that: temps.  That there may be a possibility they continue as regular employees is a matter entirely at the discretion of the Company.