Cecily Zamora
In most states, it is illegal to fire an employee because of their criminal activity. However, many companies contain provisions in their employment handbooks restricting employees from violating the law outside of work. While some states allow at-will employment, meaning an employee can be terminated regardless of the cause, employers must be diligent about their process and reason for termination. Even at-will employers cannot fire employees in certain situations, as some reasons for termination are illegal.
Can a company fire someone for breaking a misdemeanor law?
| Characteristics | Values |
|---|---|
| At-will employment | All states allow termination of an employee regardless of the cause, but employers must be diligent about their process and reason for termination. |
| Criminal conviction | A criminal conviction is a legal reason for termination. Many companies contain such a provision in their employment handbooks. |
| Criminal history | In some states, it is not lawful to ask if an employee has been convicted of a crime on the application. However, in other states, it is legal to fire an employee for lying on a job application. |
| Employment contract | It is illegal to fire an employee for any reason contrary to what is dictated in their contract. |
| Company policy | It is not sufficient to simply post a hard copy of a policy on a bulletin board or send it via email. A prudent employer will ensure that each employee reviews the policy and confirms in writing that they have read and understood it. |
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What You'll Learn
Criminal convictions and company policy
In most states, it is illegal to fire an employee because of their criminal activity. However, employers can consider criminal records when making hiring decisions, and some companies have strict policies that forbid the hiring of applicants with criminal convictions.
When evaluating job applicants with criminal records, employers consider the type of crime committed. For example, employers may be less likely to hire someone with a violent criminal history or one that involved fraud or theft. Conversely, they may adopt a more progressive attitude towards applicants with a history of non-violent or minor offenses. The time elapsed since the conviction may also be a factor, with employers finding it easier to overlook past criminal convictions if they took place a long time ago.
To reduce the possibility of unlawful termination, employers should seek guidance from an employment attorney. A prudent employer will also ensure that each employee reviews the company's policies and confirms in writing that they have read and understood them. This review should be conducted during the employee's initial training and orientation and periodically throughout their career, especially when policies are updated.
In the United States, federal law prohibits anyone convicted of certain serious crimes in the last 10 years from working in specific positions, such as security screening or having unescorted access to secure areas of an airport. Additionally, some states prohibit employers from asking about criminal history until later in the hiring process.
It is important to note that arrest records are treated differently from criminal convictions. An employer cannot refuse to hire someone simply because they have been arrested, as it does not prove that a crime was committed. However, they can explore the circumstances leading to the arrest and make an employment decision based on the individual's conduct.
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Criminal history and employment law
Criminal history plays a significant role in employment decisions, and understanding the relevant laws is crucial for both employers and job seekers. While most states allow at-will employment, where an employee can be terminated regardless of the cause, employers must still be diligent about their process and reasoning for termination to avoid wrongful termination lawsuits.
In the United States, the Equal Employment Opportunity Commission (EEOC) enforces federal equal employment opportunity law and protects employees from discrimination based on their criminal history. The Fair Chance to Compete for Jobs Act, similar to "ban the box" laws in some states, prohibits employers from asking about criminal history before making a conditional job offer. This means that employers should focus on the qualifications and skills relevant to the job during the hiring process.
However, once a conditional job offer is made, employers can inquire about an applicant's criminal history and may withdraw the offer based on the conviction history if there is a “legitimate business reason" that is "reasonable." Employers must assess the relevance of an individual's criminal history to the risks and responsibilities of the job. For example, federal law prohibits anyone convicted of certain serious crimes in the last 10 years from working in specific sectors, such as airport security or banking.
Additionally, employers must be mindful of state-specific laws and regulations regarding criminal history and employment. For instance, in Massachusetts, most employers are prohibited from asking about criminal records on job applications, except for certain industries such as daycare and financial institutions. Job seekers should be aware of their rights and can file a complaint with the Attorney General's Civil Rights Division if they believe their rights have been violated.
To ensure compliance with the law, employers should seek guidance from employment attorneys and establish comprehensive policies regarding criminal history considerations during the hiring process and employment. Similarly, job seekers with criminal histories should be prepared to explain their circumstances, provide references, and seek information about their rights from relevant agencies.
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Employment contracts and termination
Employment contracts and their termination are complex issues that HR professionals must navigate skillfully. Having an employment contract in place is essential as it reduces the risk of employment disputes and provides a crucial reference point for clarifying responsibilities and ensuring compliance with established terms and conditions. While offer letters are important in establishing an employment relationship, they do not carry the same legal weight as a contract.
The contract outlines the procedures and actions required in the event of termination, which can be either voluntary or involuntary. Involuntary termination can occur due to poor employee performance related to their job, behaviour, or both. Examples of job-related poor performance include missing targets, making mistakes, failing to respond to feedback, and missing deadlines. Behaviour-related issues may involve excessive absenteeism, rudeness, or disrespect towards colleagues and supervisors, as well as maintaining a negative attitude. In such cases, the first step is usually to implement a performance improvement plan (PIP), which clearly outlines areas for improvement and sets a timeframe for the employee to make the necessary changes.
If the employee's performance does not improve, termination of the contract may be justified. Employee misconduct, such as the deliberate violation of written or implied policies, can also lead to termination. This includes gross misconduct like sexual harassment, theft, substance abuse, misuse of company resources, and disclosure of confidential information. Redundancy is another common reason for termination, occurring when there are changes to an organisation's operational requirements, such as relocation, project shutdowns, economic downturns, or automation.
To avoid wrongful termination claims, employers must understand the illegal reasons for firing someone. These include discrimination based on race, sex, age (over 40), national origin, disability, or genetic information. Retaliation against employees for reporting illegal or unsafe practices or refusing to engage in illegal activities is also unlawful. At-will employment, which allows termination without providing a cause, does not apply to employees with signed contracts, those covered by union agreements, or those working in the public sector.
Employment termination agreements can be used to end an employment contract, provided they follow applicable laws and regulations. These agreements are formal contracts that allow both parties to negotiate and must include consideration, such as monetary compensation or other benefits. The contents of the agreement will depend on the specific situation and the state in which the employee lives and works. It is crucial to review employment contracts with a lawyer before termination to ensure compliance with the law and to prevent potential lawsuits.
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At-will employment and termination
At-will employment means that an employer can terminate an employee for almost any reason, and an employee can leave their employer whenever they want. In other words, both parties can end the working relationship without prior notice and for any reason (or no reason) at all.
All US states except Montana allow at-will employment. In Montana, employees who have been with an employer beyond the probationary period cannot be discharged without "good cause". This is defined as "reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason".
At-will employment gives employers free rein to fire employees. However, there are some exceptions to at-will employment that give employees some protection. These include:
- The covenant of good faith and fair dealing: Some states, like California and New York, recognise an implied covenant of good faith and fair dealing in employment relationships, which prevents employers from terminating employees in bad faith or with malice.
- Implied contract: In 44 states, under the implied contract exception, an employee can expect employment for a certain time period, including indefinitely, based on the employer’s actions. For example, if an employer only dismisses employees for just cause, then an employee fired without just cause may have grounds for an employment lawsuit.
- Public policy exception: This prohibits an employer from firing someone in violation of public policy. The public policy must be explicit and well-established in the state.
Additionally, federal law protects employees from sexual harassment and discrimination based on sexual orientation. Employees also cannot be fired for refusing to break the law (whistleblowing) or for discriminatory reasons if they are a member of a protected class.
To avoid wrongful termination claims, employers must be diligent about their process and reason for termination. Even at-will employers cannot fire employees for certain reasons, as some causes for termination are illegal. For example, it is illegal to terminate an employee for requesting employment leave protected by laws such as the Family and Medical Leave Act (FMLA).
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Wrongful termination lawsuits
In most states, it is illegal to fire an employee because of their criminal activity. However, an employer may be within their rights to terminate employment if the employee's contract explicitly states the grounds for termination, and criminal activity is listed as one of these grounds. Even in ["at-will" employment states], where an employer can end the working relationship without cause or reason, there are still cases in which firing an employee may be illegal. In these instances, the terminated employee may be able to file a wrongful termination lawsuit against their former employer.
Wrongful termination refers to the unlawful dismissal of an employee by an employer. This can occur when an employee believes their firing violated their rights or breached the terms of their employment contract. For example, if an employee is fired without their employer following the correct termination policies, or if their employer creates a hostile work environment that forces them to resign (constructive discharge), they may be able to file a wrongful termination lawsuit.
There are several grounds on which a person can file a wrongful termination lawsuit. These include:
- Discrimination: If an employee can demonstrate that their termination was motivated by discriminatory factors, they may have a strong case for a wrongful termination lawsuit. This includes membership in a protected class, such as race, colour, religion, sex, national origin, age, disability, or genetic information.
- Retaliation: If an employee is fired in retaliation for reporting unsafe or illegal work practices, they are protected by whistleblower policies.
- Breach of contract: If an employer fires an employee in violation of the terms of their employment contract, the employee may be able to file a wrongful termination lawsuit. This includes if the employer does not follow the correct procedure, such as a required notice period.
- Public policy violations: An employer cannot fire an employee for reasons that contravene public policy, such as reporting illegal activities or refusing to participate in illegal activities.
If an employee feels they have been a victim of wrongful termination, they may be able to file a lawsuit against their former employer. It is recommended that they consult an experienced lawyer to understand the best course of action and what to expect from the legal process. If an employee wins a wrongful termination lawsuit, their settlement may include compensation for back pay, front pay, and attorney's fees, as well as punitive damages.
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Frequently asked questions
Yes, a company can fire an employee for breaking a misdemeanor law. Many companies contain provisions in their employment handbooks restricting employees from violating the law. However, it is essential to review employment contracts, as it is illegal to fire an employee for any reason contrary to what is dictated in their contract.
Companies can terminate employees for lying on their resumes, lying on job applications, or for something found during a background investigation. Additionally, in some states, companies can fire employees without providing a reason.
It is illegal to fire an employee for refusing to break a law or reporting a company for breaking a law. Additionally, employees with written contracts can only be fired for the reasons listed in their contract, and those with implied contracts can only be fired for "good cause."
