Terminating the Employment Relationship

Other issues may arise during an investigation of employee conduct that implicates privacy rights. An employer should first refer to agency policies and legal constraints before searching an employee or their property, requesting an employee to submit to a polygraph examination, directing an employee to submit to a medical or psychological examination, relying upon a criminal or arrest record, recording a conversation, electronically monitoring the workplace or engaging in other similarly intrusive measures.

LCW Practice Advisor

5. U SING C RIMINAL H ISTORY IN D ECISIONS I NVOLVING D ISCIPLINE , L AYOFFS , OR T ERMINATIONS Employers are generally prohibited from seeking or requesting information about an employee’s criminal history when making any decisions about discipline, layoffs, or terminations. Specifically, employers may not seek information about the following:

 Arrests or detention that did not result in a conviction. 74

 Referral to or participation in a pre-trial or post-trial diversion program.

 Convictions for which the record has been judicially ordered sealed, expunged, or statutorily eradicated. 75  Any arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law. 76  Any non-felony conviction for marijuana possession that is two or more years old. 77 In addition, employers also may not use an employee’s criminal history if doing so would have an “adverse impact on members of any protected classification.” 78 An employer’s request or use of an employee’s criminal history must be limited to circumstances when it is job -related and there is a business necessity for its use. 79 To show that its use of criminal history information is job-related and consistent with business necessity, an employer must make a case by case analysis using the following criteria: 1) the nature and gravity of the offense or conduct; 2) the time period since the offense or conduct and/or the completion of the sentence; and 3) the nature of the job sought or held. 80 State regulations, however, allow agencies to prohibit persons with certain convictions from holding particular jobs, or to require a particular criminal background screening process for them, such as peace officers, individuals employed at health facilities if they will have regular access to patients and/or controlled substances, or employees supervising children. 81

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 39