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Limiting Exposure

Question: I am the HR professional at a child-care institution. We just learned that one of our best-performing employees was recently arrested for exposing his private parts in public. This has caused us great concern given the nature of our business and we are thinking of firing him just on account of his arrest. Can we fire him based on this arrest or are we prohibited from doing so?

Monday, August 26, 2013
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Answer:  The answer depends on the state in which your company is based. The majority of states allow an employer to terminate an employee based on an arrest; however, there are some states that prohibit such a termination. Additionally, regardless of the state law, the employer must be cognizant of Title VII claims, which may allege that a policy based on arrests causes a disparate impact on a protected group.

While there is limited case law related to the termination of a child-care employee based on an arrest, many states have carved out statutes which allow for certain industries, such as child-care, to obtain background checks for employees. Additionally, the Equal Employment Opportunity Commission condones the use of arrest records if an employer can show a legitimate business necessity. In the case of a childcare institution employee, based on the nature of the conduct that led to the employee's arrest (exposure of his private parts in public), and the fact that this employee works in child-care, your company will likely be able to establish that the use of an arrest record in making the decision to fire this employee is a legitimate business necessity.

State Laws

Most states do not have laws prohibiting the termination of an employee based on a past arrest. However, several states have enacted statutes that prohibit employers from inquiring about arrests and using that information either to terminate employment or change the terms or conditions of employment. States such as California prohibit employers from asking about, or using, arrest records that did not result in a conviction as a determining factor of employment or termination. Cal. Lab. Code § 432.7.

Other states that prohibit the use of arrest records in employment decisions include: (1) Hawaii, see Haw. Rev. Stat. § 378-2 (employers may not refuse to hire or employ or otherwise discriminate in compensation or other terms and conditions of employment on the basis of an arrest record); (2) Illinois, see 775 Ill. Comp. Stat. Ann. 5/2-103(A) (unless otherwise authorized, it is a violation of the Illinois Human Rights Act for any employer to discharge an employee on the basis of arrest information); and (3) Wisconsin, see Wis. Stat. Ann. § 111.321 (employers may not discriminate on the basis of an arrest record or conviction record).

Distinction Between Arrests and Convictions

An important distinction as to whether an employer may terminate an employee as a result of an arrest is whether the arrest actually led to a conviction. According to the EEOC, an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in and of itself, is not job-related and consistent with business necessity. An employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.

E.E.O.C., Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Apr. 25, 2012), http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

In Michigan, an employer may not request, make or maintain records of an arrest where there was no conviction. Mich. Comp. Laws § 37.2205a. Under the New York State Human Rights Law, employers are prohibited from asking applicants to disclose information about arrests that did not result in convictions. N.Y. Exec. Law § 296(16).

Termination For Job-Related Crimes Or Business Necessity

As indicated by the EEOC, an employer may consider the conduct underlying an arrest if the conduct makes the employee unfit for the particular position. Of course, this consideration should always be made in accordance with applicable law and in close consult with legal counsel. Courts have considered three factors in determining whether or not an employer's decision to take an employment action meets a business necessity: (1) the nature and gravity of the offense; (2) the time that has passed since the offense; and (3) the nature of the job held or sought. See, e.g., Green v. Mo. Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977). Further, according to guidance from the EEOC, to establish that a criminal-conduct exclusion is job-related and consistent with business necessity under Title VII, the employer needs to show that "the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position."  E.E.O.C., Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Apr. 25, 2012). Given the nature of the behavior for which your employee was arrested -- exposure of his private parts in a public place -- it is likely that such a causal link could be made by your child-care institution because such behavior could potentially put the children that this employee interacts with (as a requirement of his job) at risk.

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Additionally, some states specifically allow or require employers in the child-care industry to run background checks on their new or current employees. See Ga. Code Ann. § 49-5-111(a); Idaho Code §§39-1105, 39-1210(10).

While state law may not prohibit the termination of an employee based on their arrest record, employers should be cognizant that their decision could create liability under Title VII of the Civil Rights Act of 1964. 42 U.S.C. 2000e, et seq. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. Courts have found that an employer may terminate an employee who engages in misconduct, legal or illegal, and whether or not the employee is later convicted "as long as the decision is not based on [a protected classification]."  Zinn v. Limestone Cnty., Ala., No. 5:11-CV-01800-NE, 2012 WL 3504990, at *7 (N.D. Ala. Aug. 9, 2012). An employer is permitted to terminate an employee based on past arrests absent evidence of disparate impact (meaning that an employer's conduct may be considered discriminatory if it has a disproportionate impact on members of a protected class). Ramos v. EquiServe, 146 F. App'x 565, 569-70 (3d Cir. 2005).

As the state law in this area varies greatly, your organization would be best served to review the applicable law in your jurisdiction with your legal counsel before making any employment-related decisions based on this employee's arrest. However, based on the sensitive nature of the child-care industry, it is likely that a court would find that there is a job-related, business necessity for terminating the employment of a worker who was arrested for conduct that could potentially put minors at risk.

Keisha-Ann G. Gray is senior counsel in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Allana Grinsteyn assisted with this article.

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