Magazine article Workforce

Q&A: Legal Posts

Magazine article Workforce

Q&A: Legal Posts

Article excerpt

Legal Insight

Firing an Employee-Who's in Jail

Q: An employee's probation was revoked and he is now in jail until at least the court date at the end of the month. He called from jail and asked about his job. What is the employer's obligation? Do we need to put the employee on leave and wait until he gets out? Or can we terminate the employee for unauthorized absences since we cannot approve an indefinite period of leave? If we are to terminate the employee, should we notify him while he's in jail, or should we wait till he gets out?

A: This is an issue of state law. Most states have statutes prohibiting discrimination on the basis of criminal conviction or criminal arrest unless job-related. Furthermore, if the employee is covered by a union contract (requiring "just cause" for discharge) or if the employer is a public employer, the employer may be prohibited from relying on the fact of arrest at all. In some cases, an employer can show that it terminated the employee because of absenteeism (rather than arrest or conviction). If the facts show, however, that other employees have been absent for comparable periods and were not terminated, or that the employee had sufficient leave in the bank to cover the absence, that justification might not hold up. If discharged, the (former) employee could argue that what motivated your decision to terminate was his arrest/incarceration. Your employment counsel can tell you whether this would be lawful under your state's laws.

She Didn't Say She was Pregnant

Q: We employed a candidate who was told that the summer months, and most importantly September, are the critical months for this particular business and was asked if that would be a problem. The candidate replied no, and accepted the offer.

Two days into her employment, she notified her boss that she was six months pregnant and due at the end of August, and she would be out the entire month of September (she is not visibly pregnant). When asked why she didn't offer that information at the interview, she replied that she didn't want to be discriminated against and not offered the position. Is there any flexibility here in terms of ending the employment relationship because of dishonesty and inability to perform the necessary job duties during the "critical" months?

A: There are a couple of significant issues here: (a) whether the employer can and should terminate the employee outright and (b) whether the employer is obligated to grant the employee a leave of absence for the birth of her child. The answers may be different.

(a) In our view, if you were to terminate the employment of this employee for "lying" during the interview, your company could be facing some significant risk of litigation. We doubt that an employer could legally terminate an employee for giving a false answer to a question that revealed information the employer could not lawfully rely on. Suppose the employer had said, "September is a really busy time of year and I need all hands on deck. You are not pregnant, are you?" If the applicant lied and said no, we doubt that the courts would let you fire her for lying to you. Are there any circumstances under which an employer could deem pregnancy status to be a job requirement? Well, in theory there could be, but it will be a rare case and one that will turn on the specific facts of the case.

(b) Must the employer grant the employee a leave for childbirth? Again, a difficult question. We assume the employee is ineligible for state or federal FMLA because she has not been employed for a sufficient period of time and has not worked the requisite hours. However, since 1972, federal law has prohibited an employer from discriminating against an employee on the basis of her pregnancy status. Thus, an employer could not refuse to hire or terminate an employee merely because she revealed that she was pregnant. Here, the employer seems to have identified a job requirement that it deems essential-be here to work during our busiest time of the year. …

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