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WORKER CHARGED WITH ASSAULT, WHAT SHOULD BE DONE?

QUESTION: One of my co-workers was arrested for assault. He’s out on bail while he waits for trial, and is still coming to work every day. I feel really uncomfortable, and can’t figure out why management hasn’t fired him.

ANSWER: A worker who has been arrested and charged with an offense is innocent until proven guilty – at trial or by plea. An employer’s response to a worker’s arrest depends, in part, on the employee’s status.

At-will employees can be terminated for any lawful reason (employees cannot be terminated in Michigan on the basis of religion, race, color, national origin, age, sex, height, weight, familiar status, marital status, or disability). An employer is within his or her rights to fire an at-will employee immediately upon the arrest. However, it may be wiser (and kinder) to wait for a conviction, depending on the severity of the offense charged and the impact of the arrest on the workplace. If the charges are severe, a worker could be asked to take a paid or unpaid leave, pending resolution of the charges.

The Equal Employment Opportunity Commission Opportunity (EEOC) suggests that firing an employee solely on the basis of an arrest could violate federal laws barring discrimination in employment if allowing termination would disproportionately impact a protected class of employees (race, religion, sex, national origin, etc.). According to the EEOC, an employer may discharge an employee when the decision to terminate is based the conduct underlying the arrest and that conduct “makes the individual unfit for the position in question.”

Unionized workers/employees on an employment contract can be terminated based on an arrest only if this is allowed under the terms of the union contract/employment contract. Typically, such contracts require a worker to be placed on leave (paid or unpaid) until the charges are resolved. Even where there is no conviction, some contracts permit an employee to be fired if the conduct alleged violates a moral or ethics clause, or brings the company’s name into disrepute.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]
http://www.gwinntauriainenlaw.com/