Ex-felon employee. He calls in and says he can’t come into work because he was arrested for public drunk-or so he says. Can I require proof for the cause of arrest or am I forced to take his word?
Thanks,
hh
IANAL, but why wouldn’t you be able to ask for proof of his arrest? If someone took off because they went to the doctor, you could ask for proof of that, correct?
Once again, I am definitely not a lawyer. But wouldn’t his arrest be public record anyway (assuming he is an adult)?
Does your company have any policy on background checks? If it does, you might be permitted to call the police to get an arrest report on him, which would show you every offense for which he’s been arrested (though not necessarily convicted.)
If I understand correctly, should you find out that he lied on his application form, it’s a legal reason for terminating his employment.
You’ve misunderstood the question. The OP is not asking about pre-employment screening. The OP is asking about requiring an existing employee with a criminal record for proof of the charge for missing work.
I’m curious as to why the OP would need to know the specific charge.
Basically, as a protective measure. If an ex-felon is hired, and still goes around doing what he went to prison for, I can see a *big * liability issue coming down the pike. (IANAL, but I do know that a half way sober lawyer would ask something along these lines, were I to go to court.)
Thanks for all responses,
hh
IANAL either , but as far as arrests go, arrests don’t equal convictions. Anyone can be arrested for pretty much anything and it’s not a legal indicator of guilt or innocence. Some jurisdictions (Wisconsin included) don’t allow employers to consider arrests in making hiring decisions. Wisconsin’s civil rights law doesn’t allow employers to consider convictions unless the conviction is substantially related to the area of employment (i.e. a bank doesn’t have to consider a convicted embezzler). There was a big test case for that law a couple years ago. A convicted child molester got fired from a bakery because children came through on tour groups.
Unless you are in one of the few “right to work” states, why does it matter? I’m assuming from your question that you’d not hold this against him if he really was arrested for what he said, but if he lied about being arrested or what he was arrested for, you would take disciplinary action.
If he said he was sick, would that count against him? I’m trying to get my head around your companies policy on absenteeism.
Talk right to him.
Joe, I want you to have this job, as part of your journey back from your past. Getting drunk is not a good thing, and getting drunk enough to get arrested for it is even worse. But, I need you to make me confident that keeping you on the job is a good decision. Can you show me something that verifies that you got arrested for drunk in public, and not second story burglary? I am out on a limb here, Joe. Help me out, so I can keep helping you out.
Tris
What if his name isn’t Joe?
IIRC, aren’t arrests a matter of public record? Just call the police department and ask.
Most felons have multiple aliases. 
Arrested for drunk driving is a tricky situation. Here is why, alcoholism is a disease and you can’t fire someone for that WITHOUT giving him the chance for treatment.
The original questions is somewhat vague. Directly answered YES, you can require proof of absenteeism. For instance my employer requires a doctor’s not EVERY time you call in sick. And you can only call in sick AFTER. For instance I can’t take a day off of work to go to the dentist and use a sick day. We had a person needed minor surgery. They were not allowed to use sick leave. As the policy states clearly “planned medical treatments are not covered by sick leave and vacation time must be used.”
Employers don’t have a right to know WHY you’re ill, just IF you are really ill. As one poster stated an arrest is public record you can easily check the police blotter. If there is no actual arrest, you can write the person up and disipline them appropriately.
The thing that is tricky is if this drunk driving is symptomatic of alcoholism BEFORE you can fire this person you must give them a chance to treat their illness. After all you don’t fire someone for having a cold. And alcoholism is covered by the FMLA for 12 weeks of unpaid time off. (If you’re company is big enough)
sorry should read doctor’s NOTE
I wrote doctor’s not.
My error sorry
Actually, no. Larson v Koch Refinery 920 F. Supp. 1000, 1004 (D. Minn. 1996) found that while the Americans with Disabilities Act may protect people from discrimination based on his status as an alcoholic, the ADA doesn’t protect alcoholics from the consequences of their actions. Larson was fired after being arrested for drunk driving and assault and argued that Koch violated the ADA by not offering him alcohol counseling before firing him. The court found that his employer didn’t know of his alcoholism before firing him and that a pattern of absenteeism coupled with the arrest gave Koch a valid basis for the termination.
You should talk to a qualified labor and employment lawyer in your jurisdiction. I’m sure all are well-intentioned, but none of the people who have responded so far have the credentials to give you a definitive answer. And there is a lot of guessing (borrowing Random’s euphemism) going on here, too.
For example, as **Otto ** has correctly noted, the ADA does not prohibit an employer from firing an employee for not meeting job requirements (like showing up for work) even if the failure is because of alcoholism:
http://www.usdoj.gov/crt/ada/pubs/ada.txt
I am not your lawyer; you are not my client; this is not legal advice; consult an attorney licensed in your jurisdiction for legal advice.
My reading of OP is not that he wants to fire him for being drunk in public, he doesn’t care about him be wasted on his own time. He is worried in case he actually got busted for something for serious, and his company could be liable if he does it again while clocked in… He wants to check it was actually public drunkeness that guy got busted for .
As I think someone else said, arrest != guilty. Some companies have routine policies that anyone who is arrested for a certain level of offense must report it, and must report on the outcome. If the offense is not proven, and the supervisor says the allegation did not impact on work performance there is no action taken.
It would seem to me that, unless this was part of a pattern of missing work for such reasons, there should be no grounds for any kind of action. But then, lots of things that seem logical to me are not put into practice.
My Hubby’s workplace requires that any arrest must be reported immediately. Anyone failing to do can be fired.
Sorry-- Hit “Submit” too soon.
You also have to report if any members of your family have been arrested or incarcerated.
(His workplace is a prison and these rules are designed to make sure the employees don’t have a conflict of interest.)
Most definitely do not want legal advice. Basically, I only want cites from cases that any know of, or people that have had experience or know how to find information, their good collected wisdom, etc…
If I know of a legal decision, or, for that matter, what the law says, I can and will make the response that is most fitting. I would not take advice even from a lawyer, I would only ask his opinion on how a judge/jury would react. If a lawyer would tell me those things, I would know, instinctively, *exactly *what to do.
thanks for answers to date!
hh