As part of the recruitment process, HR staff ensures that an applicant has no criminal record. They also verify each applicant’s identity. After all, no company wants an outlaw on their payroll.
But sometimes, no matter how careful you are in screening applicants, misfortune occurs. Maybe the most faint-hearted candidate with the most impressive credentials is secretly a serial killer. That’s indeed dreadful to think about, but it could happen if your HR misses a few things.
To give a less severe example, what if one of your employees was flagged as a suspect in a crime? Could be drunk driving, stealing, harassment, or stalking. Naturally, your first reaction is to become alert. A potential criminal in your midst will affect your company’s reputation, which may thwart its success.
However, HR staff and employers should avoid knee-jerk reactions when dealing with such an incident. Firing or suspending the employee straightaway may backfire on you. There are laws protecting employees from wrongful termination. Plus, what if the employee turns out to be innocent?
But the more pressing concern is the employee more likely being guilty. If your gut instincts tell you that they’re dangerous, chances are it’s true. So how will you fire them without risking provocation?
1. Contact The Relevant Law Enforcement Agency
You have the right to know why your employee is under criminal investigation. Call the law enforcement agency in charge, and obtain as much information as possible. The agency may ask you for information too, so cooperate with them as well. Exchange details so that you’ll have a mutually beneficial communication.
2. Consider Suspension
The role of HR in this situation depends on whether the alleged crime is work-related, or could impact their work. If your employee is accused of a crime that isn’t work-related, consider if it’s appropriate to suspend them on full pay. But that depends on how severe the alleged crime is.
3. Conduct an Internal Investigation
If you’re unsure if the suspension is necessary, conduct an internal investigation to see what other options you can have. You can interview the employee, as well as their colleagues who may have useful information. However, note that your internal investigation and the criminal investigation are separate matters. If your employee commits serious misconduct during your internal investigation, you may terminate them without waiting for the criminal investigation’s verdict. But consult an experienced employment lawyer first.
An attorney’s help is crucial because the termination process can go wrong in many ways. If you fire your employee, you may be charged with wrongful termination because you overlooked some legal factors. For example, if you demanded the employee to undergo a lie detector test, and they refused, you cannot fire them for that reason. Such is stated in the federal Employee Polygraph Protection Act. Many state laws don’t even allow the use of a lie detector test in the first place.
You cannot terminate an employee for retaliating either. Even if they are under criminal investigation, they still have the right to maintain their silence. So if the employee complains about your internal investigation, you cannot use that as a reason for firing them.
4. Review Evidence
If the crime allegedly committed was done at work, the employee’s computer may have traces of evidence. So review their emails, office phone call logs, computer history, CCTV footage, finance records, and so on. Alert the law enforcement agency of any suspicious transaction.
5. Make Your Final Decision
Firing an employee for the sole reason that they are under criminal investigation is illegal. You need to make further considerations before terminating their contract, such as whether the crime is work-related or not. If the investigation is not work-related, and the employee’s alleged crime will not affect their work in any way, then all the steps above aren’t applicable. The only necessary action you have to make in that case is discussing the situation with your employee and providing them support.
But if the employee’s alleged crime is egregious, such as assaulting a colleague, committing fraud, or using your property to carry out a crime, then you may fire them. As long as you’re not breaching any term in your contract, you’re in the clear.
You can also fire an employee for committing a crime outside work if it will affect their duties in your company. For example, if she or he is found guilty of shoplifting, and their position in your company is a sales associate, then they’ve broken your trust. This can be a legal reason to fire them.
But if the shoplifting employee is a file clerk, then their misconduct may not be enough to sack them. In any case, perform the necessary investigation, consult a lawyer, and ensure that you’re not committing wrongful termination. While gut instincts are mostly correct, they’re not valid reasons to call someone a criminal and fire them.