Losing Your Job Before You're Charged With Anything.

The presumption of innocence is a constitutional protection that applies to criminal adjudication, not to the private employment relationship.

In an at-will employment relationship, an employer can terminate an employee for any reason, or for no reason at all, as long as it is not unlawful. Mistaken beliefs that give rise to the termination will not relieve employers of liability unless they are unlawful, but they generally will not preclude employers from terminating employees for these beliefs. This means that, absent contracts, statutes, and other public-policy exceptions, private employers can terminate employees not only after they have been arrested, but even before criminal charges are filed. Protections for employees who have been arrested, but not convicted, vary significantly from one jurisdiction to the next.

Prosecutors must prove guilt beyond a reasonable doubt before criminal defendants are convicted in a court of law. However, employers can investigate allegations of criminal conduct before charges are filed, and then determine whether the employee’s conduct warrants employment-related discipline without proving that the employee committed a criminal offense.

Again, what constitutes employee misconduct (and, thereby, grounds for discipline) depends on the relevant employment contract, handbook policies, and law. An employer may determine that an employee committed misconduct that warrants termination, even if the employee’s conduct does not meet the legal standard of proof for a crime.

Whether an employer can place an employee on paid or unpaid investigatory suspension depends on the applicable law, company policy, and employment contract in the employee’s jurisdiction.

What Do Investigation, Arrest, Charge, and Conviction Actually Mean?

Although people use these terms interchangeably, the words arrest, charge, and conviction all have distinct legal meanings:

Arrest vs. Charging

Arrest and criminal charging are two distinct legal events. While an arrest often leads to charges, an arrest does not always warrant criminal charges, and while prosecutors can file charges against individuals without arresting them, this is less common. Furthermore, while a dismissal of charges removes the individual from the criminal justice process, it does not automatically restore their job or position in the event of a wrongful termination.

Police Contact, Police Questioning, and “Police Contact” (Without Arrest, Charge, or Conviction)

police contact, such as police questioning, is not the same thing as being arrested, charged, or convicted. As a result, even if an employer learns of an individual’s alleged criminal conduct via a workplace rumor (such as through social media posting), this is not the same as a law enforcement agent having access to a criminal record, or a court of law having made a finding of criminal guilt.

Executing a Search Warrant

Executing a search warrant is another event that may precede criminal charges, and it does not itself establish an individual’s guilt or the fact that an individual has committed a crime. If an employer has a warrant on a criminal case, the employer will still need to comply with any employee protections to terminate an employee for the offense in question.

Receiving a Subpoena

Receiving a subpoena is another event that does not automatically equate to an arrest, charge, or conviction. A subpoena can seek an individual’s records or require an individual’s testimony at the criminal justice process’s trial stage; and a subpoena can be issued even before prosecutors have filed criminal charges against an individual.

Being the Subject of an Investigation

The fact that an individual is under investigation does not, in itself, equate to an arrest, charging, or conviction. An investigation can occur without an arrest, charging, indictment, or court appearance. If an individual’s employer is aware of an investigation and terminates an employee as a result, this may be a grounds for a claim for wrongful termination under the relevant employee protection statutes or policies of the individual’s jurisdiction.

Conviction

While being arrested, charged, or being the subject of an investigation does not reflect a final outcome in the criminal justice process, a conviction reflects a finding by a judge or jury of criminal guilt.

What Limits an At-Will Employer’s Right to Fire Me?

At-will employment does not mean that an employer can terminate an employee for absolutely any reason. For example, at-will employment does not permit discrimination or unlawful retaliation. In this regard, the “at-will” nature of employment is limited by the federal and state statutory protections that prohibit termination based on race, gender, age, sexual orientation, religion, national origin, disability status, genetic information, or military status.

Written Employment Contracts

While most employees are hired on at-will terms, some employees will have written employment contracts. The terms of these contracts can limit their employers’ right to terminate employees for a variety of reasons. In addition, regardless of the terms of their written employment contracts, contract-based employees are entitled to protections under general breach-of-contract law.

“Zero-Tolerance” Policies

Many employers adopted what they termed “zero-tolerance” policies during the 1990s and 2000s. While these policies forbid employees from engaging in certain behaviors regardless of circumstances, an employer’s zero-tolerance policy cannot override state and federal statutes or binding employment contracts.

Lawful Off-Duty Conduct

Many jurisdictions recognize a right to engage in lawful off-duty conduct. This means that, in certain circumstances, an employee may be entitled to terminate his or her employer’s right to take adverse action based on employment-related decisions made based on employee conduct that is not unlawful and not related to the employee’s professional duties. This is a very strong protection when it applies, but protections for lawful off-duty conduct vary significantly from one jurisdiction to the next.

Public-Policy Exception

Some jurisdictions also recognize a public-policy exception to the at-will doctrine. Under this exception, an individual may be entitled to sue an employer for wrongful termination if the employer’s decision to fire the individual violated a recognized public policy of the individual’s state or country. For example, terminating employees for refusing to break the law or for providing testimony in order to aid a criminal prosecution has been found to violate public policy in some states.

Whistleblower Statutes

Various federal and state whistleblower statutes protect workers who report illegal conduct to law enforcement, internal compliance officials, or designated government agencies. This includes reporting fraud, corruption, and various other crimes that can carry penalties under the Sarbanes-Oxley Act, the Dodd-Frank Act, and similar statutes.

Protected Leave Laws

Various state and federal statutes protect employees who take medical leave, family leave, or other form of covered leave to take care of themselves or family members. Termination based on an individual’s use of protected leave is subject to scrutiny under the Family and Medical Leave Act (FMLA) and analogous state laws.

State Arrest-Record Laws

Some states also have arrest-record laws. While these laws primarily apply to prohibitions on discrimination, they also restrict employers’ right to make employment decisions based on non-conviction-related information.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

What Should I Tell My Employer While Police Investigate Me?

Although your right to silence (established in the Fifth Amendment to the United States Constitution) is vital during a criminal investigation, you should not assume that the same right applies to your employer’s investigation. Generally speaking, your Fifth Amendment right to silence does not excuse your failure to answer your employer’s questions in an internal investigation. Because the Fifth Amendment restrains only the government, the Garrity protection that keeps compelled statements out of a criminal case applies to public employees questioned by their government employer, not to employees of private companies. Statements you make in a private employer's internal investigation are generally admissible against you in a later criminal proceeding. However, this is a complex area, and you should discuss your specific case with a lawyer.

Professional Licensure Rules

Some jurisdictions have professional licensure rules. These rules can require licensed professionals to disclose certain information to their licensing board or their employer, often before any action is taken. If you are a licensed professional, it will be important to know these rules and know what is required of you under the law.

Avoiding Unnecessary Admissions

When you are under investigation, you should avoid making admissions, whether intentionally or unintentionally. An employer’s investigation might end up leading to your criminal charges, and your statements in a workplace setting will be admissible for determining grounds for termination. In addition, admissions to your employer will also be admissible in a criminal court proceeding, and will also have the potential to force you to change your criminal-defense strategy.

Avoiding Disclosing Information to Your Coworkers

You should avoid disclosing any information to your coworkers, as they may be asked to share what you have said during their employer’s internal investigation. You are entitled to speak to your lawyer in confidence, but this confidence does not extend to speaking with your coworkers, and it should not extend to speaking with your employer.

Dealing with Union Representatives

If you are represented by a union, you may be entitled to have a union representative with you during a disciplinary proceeding. However, your union representative is not automatically your criminal-defense counsel, and there are a variety of criminal-defense concerns that you should consider if you are considering speaking with your union representative about your criminal case.

Determining Whether You Have to Self-Report

Whether you are required to self-report depends on your professional licenses, employment contracts, employer policies, court-ordered conditions (if you have a criminal record), your job-related relationship with a law enforcement agent, and other factors. There are many laws, policies, and contractual terms that establish obligations for employees to self-report and report a wide range of violations.

Avoiding Violating Bond Conditions

If you are out on bond, you must be sure you are not violating any bond conditions. Violating your bond conditions can result in the revocation of your bond, which could then make it impossible to continue your employment.

Coordinating Criminal-Defense and Employment-Law Strategies

When you are under investigation or subject to criminal charges, your criminal-defense strategy and employment-law strategy should be complementary in nature, and they should avoid interfering with one another. If you find yourself facing criminal charges, it will be important to communicate effectively with your defense counsel so that he or she can represent your interests in parallel proceedings while ensuring that your defense against your criminal charges does not lead to liability for your employment-law claims.

Do Public and Union Employees Get a Hearing Before Discipline?

Both union and government employees generally have various rights during workplace investigations. While unionized employees are subject to contractual protections established under their union’s collective bargaining agreement, government employees are subject to constitutional protections. However, these are different rights that apply in different scenarios.

Union Employees

Union employees’ collective bargaining agreements typically require their employers to have “just cause” for issuing any discipline. If union employees do not have just cause for termination, they can use contractual grievance and arbitration procedures to seek the reinstatement of their positions. As a result, union members can seek remedies for wrongful termination based on their employer’s failure to follow the terms of the collective bargaining agreement.

Public Employees

Unlike union employees, public employees are entitled to various due process protections. Under the U.S. Constitution, due process protections apply when the government deprives a person of “life, liberty, or property.” As a result, public employees are entitled to due process only when they possess a protected property interest in their positions. For example, if a public employee has a lifetime appointment or a contract that expires at a specific date, this public employee will be entitled to due process.

Loudermill

The “Loudermill” rule established in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) applies to covered public employees who possess a property interest in their positions. Under Loudermill, employers cannot terminate employees without providing prior notice of the termination and giving employees the opportunity to respond in a pretermination hearing. However, Loudermill only applies to employees who possess a protected property interest in their employment. Simply working for the government does not alone establish a property interest in one’s employment.

Garrity

In Garrity v. New Jersey, 385 U.S. 493 (1967), the U.S. Supreme Court established a protection for compelled statements that employees make to the government. Under Garrity, compelled statements from employees of state or local governments cannot be used to support criminal charges filed by their employers, or used by a criminal prosecutor in subsequent criminal proceedings. However, Garrity does not protect employees who give a statement in response to a law enforcement agent’s request, only those who are compelled to speak, and Garrity does not protect private sector employees.

Weingarten

Union employees have the right to request representation by their union when they are being questioned about an issue that may lead to discipline. This is referred to as a Weingarten meeting. Although Weingarten is a nationwide legal protection, this right generally only applies when employees request representation. This also includes union employees in situations where there are questions about their criminal conduct, and it has been found to apply to federal government employees as well.

Can I Challenge a Pre-Charge Firing, or Can I File for Unemployment Benefits?

Depending on the circumstances at hand, you may be able to challenge your termination in court or seek a separation of employment settlement. Additionally, even if you have been terminated for misconduct, you may still qualify for unemployment benefits, which vary depending on each state’s adoption and adoption of relevant statutes and policies. As a result, after reviewing your background reports, you should immediately discuss the implications of your background reports with an employment lawyer.

1. Third-Party Background Reports and the Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 to 1681x, is a federal statute that applies to employers that use reports from third-party consumer reporting agencies to hire, fire, or make other employment-related decisions based on individual’s criminal background. Under the FCRA, before an employer takes adverse action based on information in the report (such as firing an employee), the employer must provide the employee with a copy of the report and a written summary of the individual’s rights under the FCRA. In addition, before an employer takes adverse action, the employee must be given a reasonable period of time to review the reports, and the reports must be reviewed by a person who is not responsible for making the adverse action decision. If your employer did not comply with these requirements, you should speak with an employment lawyer regarding filing a claim under the FCRA.

2. Arrest-Related Discipline and the Equal Employment Opportunity Commission (EEOC)

The EEOC maintains a detailed position statement regarding criminal records that applies to all private-sector employers. The EEOC states that employers generally cannot use an arrest, or merely the fact that an individual has been arrested, as evidence of misconduct. Arrests should only serve as evidence of an investigation. Under Title VII of the Civil Rights Act of 1964, adopting an arrest-based discipline policy can lead to unlawful disparate impact liability. The EEOC suggests that employers should base workplace discipline based on relevant, individualized assessments of employees’ actual criminal conduct; they should use an employee’s arrest records and convictions as circumstantial evidence of misconduct in a manner that is consistent with individual’s rights and responsibilities.

3. Termination for Alleged Misconduct and Unemployment Benefits

Whether or not you qualify for unemployment benefits depends on the specific facts involved in your separation from employment. While an employer may argue that termination is justified due to alleged misconduct, you may still qualify for benefits depending on your state’s statutes, administrative rule, and other factors.

4. Wrongful Termination and Employment Contract Disputes

In lawsuits for wrongful termination, lawsuits do not seek to show that an employer’s termination of employees was unfair. Instead, plaintiffs seek to show that their employer terminated them for an unlawful reason. These reasons include any reason that is prohibited by the Constitution or applicable federal or state statutes, regulations, rules, or executive orders; or any reason that violates an enforceable employment agreement. When employees hire employment lawyers to represent them in wrongful termination claims, these lawyers will examine all relevant employee protections that apply.

5. Documenting Your Lost Wages

When you have lost wages due to your employment-related termination, it is important to document your lost wages. This documentation includes your past pay stubs, pay schedule, benefits information, benefits schedule, termination letter, severance offer (if any), and any other relevant documents.

6. Disputes Under the Fair Credit Reporting Act (FCRA)

If your background report is inaccurate, this can also affect your right to dispute information in your background report.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.