Presumptions of Innocence

Questions answered this month relate to the steps employers can take relating to drug testing and to terminating an employee awaiting trial on criminal charges.

By Tracey Levy

Our justice system presumes innocence until guilt has been proven, and our Constitution has been interpreted to guarantee us a certain degree of personal privacy. But those fundamental protections apply to the government, not private employers. 

Although state laws vary and are largely controlling in this area, as a general matter there are steps employers can take to proactively protect their workers, clients and equipment against employees who may be dangerous or act unlawfully. This month's questions highlight some of the legal parameters.

Question: Can an employer safely terminate an employee who has been arrested, pleaded innocent, and is awaiting trial? The employee works for a construction equipment manufacturer and fellow employees don't want to work with him. Two have resigned. He is accused of child molestation. 

Answer: As a general matter, the Equal Employment Opportunity Commission has taken the position that an employer may not base employment decision solely on an individual's arrest record. Several states have also enacted legislation that restricts an employer's reliance on an individual's arrest or conviction record. 

For example, in New York, an employer cannot inquire about, or take an adverse action against an employee based on an individual's arrest. N.Y. Exec. Law. 296-(16). Also, under New York law, an employer can take into account a criminal conviction only if there is a direct relationship between the criminal offense and the employment or if granting/continuing employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. N.Y. Correct. L. 752. 

Similarly, in California an employer cannot seek or use an arrest record that did not result in a conviction in determining employment decisions, such as hiring, promotion or termination. Cal. Lab. Code 432.7. In either state, however, there is no prohibition against an employer asking about, or taking employment action based on an indictment for which an employee is out on bail or on his own recognizance pending trial. 

This is an area in which the law is very state-specific, and in which the nature of both the crime charged and the type of employment may determine the permissibility of taking any employment action. I would, therefore, strongly encourage you to consult with local counsel.

Question: Can an employer perform random drug testing for warehouse/plant personnel who operate machinery?

Answer: Although the federal government has issued drug-testing guidelines for certain fields, such as transportation, in general the employer's right to conduct random drug testing depends largely on state law.

Some states allow drug testing of employees only if there is reasonable suspicion that the employee is under the influence of drugs or alcohol. In Connecticut, for example, employers generally cannot use random drug tests unless such testing is authorized by federal law, the employee serves in a high risk or safety-sensitive position, or the test is conducted in connection with an employee assistance program in which the employee voluntarily participates. Conn. Gen. Stat. 31-51x. 

Additionally, employment decisions cannot be made based solely on a urinalysis drug test unless reliable methodology was used and the positive test was confirmed by a second test using specified methods. Conn. Gen. Stat. 31-51u.

Other states permit random drug testing, but subject to certain procedural requirements. For example, in Montana an employer can administer random drug testing if it establishes a calendar period for testing, random selection process and testing rate, develops a procedure to ensure employees are aware of the testing program, and conforms the program to other procedural requirements. Mont. Code. Ann 39-2-208. 

In Arizona, employers may conduct random drug testing for any job-related purpose, consistent with business necessity, provided the testing is done by a certified lab and positive initial results are confirmed by a different chemical process. Ariz. Rev. Stat. Ann. 23-493.01-11. Arizona employers must also provide detailed advance notice of their drug-testing policy and procedure.

Finally a third category of states, such as Florida and Ohio, impose no restrictions on drug testing by private employers (except to require that employers bear the expense of such testing). Employers should, therefore, consult with local counsel to ascertain the legal parameters of any drug-testing policy. 

To submit a question.

Dec 4, 2006
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