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| *Ostroff, Fair and Company>>>Law & Legal |
Can someone sue there old employer for being fired for having a felony when they did not ask before hiring? |
A friend of mines was fired from a job after being hired on and working there a few weeks because they found out that he had a felony on his record. On the offer letter all it said was that his employment was contingues based on a drug test. No where and at no time did they ask him about a felony or did they say he could be let go because of a felony. He quit his previous job and is unable to go back there and it was a real inconvience. Does he have a case? This is a gray area. They did not ask, he did not offer. Contact the Department of Labor for guidance on this Sounds kind of odd. I would first make sure your friend gave you all of the facts. Every job application i ever filled out had a section of Crimes Convicted of, To include misdemeanours. With a seperate section for Felonys. I would say that the employer is in the right, in the fact that most employment terms are conditional within the first 90 days. Meaning termination with or without cause within the timeframe. Got to read the fine print is my advise to your friend. And not hide the Felony as most jobs do background checks now days. Put it on the app, so its not an issue. It depends on a lot of things. If your state is an "employment at will" state then your friend likely doesn't have any recourse. Simply, what that means is that your friend can be let go with or without cause; with or without notice. You might see if he had a contractual agreement with the employer. He might then have a breach of contract case. However, not many attorneys would be willing to accept a case from a convicted felon - depending on the felony he committed. You can sue for anything and in this case - it's usually a case for lost wages, stress, etc... Although a felony conviction is generally enough to keep someone from being hired, it's not a protected class either (in other words, it's perfectly legal to discriminate based on having a criminal background). Most states are also employment at will and people can be fired for anything, as long as it's not discrimination for race, gender, ethnicity, religion, disability, etc... However, in many states - this information is also a matter of public record. The employer is still supposed to get the person's consent & authorization to actually run a background check... if no application was completed and no other papework filled out - the questions that come to mind are this: 1) Are you 100% sure this is the reason he was fired and he isn't just assuming that's the reason? 2) How did they find out he had a felony? - Is it available via public records? - Did they run an actual criminal history background check? 3) What is the nature of the felony, the nature of his position, and the industry? (don't answer this publicly, but for you to think about) If his information was available via public records and the nature of the felony was severe enough to create a liability for the employer - then he probably won't have a case. In other words, if his felony were for financial crimes (i.e. embezzelment, theft, etc) and he's in a position in which he has responsibility for large amounts of money, access to money or to client accounts & records, or even say the manager of a warehouse with a large inventory - the financial risk to the business (and possibly their customers) is significant and would warrant letting someone go. Another example is liability for negligent hiring... if his felony is extremely violent or sexual in nature - and he's in a position in which he interacts with a lot of customers (and co-workers) or is in outside sales with accounts that are near schools, playgrounds, etc... the risk to the company for negligent hiring is if he were to hurt or sexually assault someone would be a lot higher than the risk they take of him suing them for firing him after the fact. Unfortunately, I've been in that situation in which I had to let my warehouse manager go when we were made aware of pending charges against him with another major employer for theft of company property (thousands of dollars worth of computer equipment). He hadn't even been convicted - but it was an open, active case and the risk was too great, because we were an electronics distribution center and he was IN CHARGE of the entire warehouse, which was essentially a multi-million dollar vault! In our state, these documents are public record if you know where to look... we got our attorney's involved before we made any decisions... and it was hard to do because we really liked the guy and he did a great job... but no, we didn't get his consent to run a background check AFTER the fact, but we were still within our rights to investigate once something was brought to our attention and the information was publicly accessible. Look in the phone book under US Government and look up the Dept. of Labor - Wage and Hour Division. Have tyour friend go there in person and ask to speak to an investigator and explain in full detail what happened. They will tell you what can or can't be done to help you. Good luck. And for alot of you reading this and other similar question answers don't overlook that that drug arrest you got for having a couple of herb smokes in your car. Is now a public record and yes it is cause to either not hire you and/or fire you if I the employer find it within your three month trial period. He should be sure of what all he signed, as far as paperwork goes. Most places do an "at will" employment agreement. They can fire him if they so chose, especially for a criminal background. The only thing that is illegal is for the background screener to tell the employer not to hire a person. |
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