By: James B. Sherman, Esq.
Employers often call us to ask how they should handle an employee that has been arrested and/or charged with some kind of crime. Oftentimes the employer's concern is over work-related consequences, such as employee absences, loss of driver's license or insurability resulting from an arrest or conviction. Occasionally, however, the employer's concern has more to do with the nature of the crime involved; for example, an employee charged with embezzlement is always going to raise an eyebrow or two if his employer is a bank. But what if you employ someone not only charged with but indicted for murder? Would you want to have that person back at work while the murder trial drags on for months or years? The City of St. Paul was faced with this very scenario; its reaction and the ensuing civil law suit are instructive to all employers.
Faced with one of its employees being indicted on criminal charges of murdering someone, the City of St. Paul decided to place the employee immediately on unpaid administrative leave rather than face the possibility of returning him to work pending the outcome of his trial should he post bail. The City openly admitted it refused to allow this individual - accused but not yet proven guilty of the crime of murder - back into the workplace out of concern for the safety of other employees. The resulting civil law suit by the employee challenging the City's decision was decided only recently in federal district court in Minnesota. See Foster v. City of St. Paul, Civ. No. 09-3553.
The plaintiff in this case alleged race discrimination but his claim was easily dismissed because he lacked any evidence that the City acted on account of his race. The plaintiff's lawyers also tried to claim he was denied his constitutional right to be presumed innocent until proven guilty. This claim also failed when the court determined that presumption of innocence is not a constitutional right but more of an expression of the common law principle that the prosecution must prove its case in order to convict. However, the court also noted the plaintiff had failed to allege a so-called "public policy" wrongful discharge claim in his complaint, thus alleviating the need to address the legitimacy of such a claim.
Of course, in states such as Wisconsin that have laws protecting all persons arrested or accused of crimes regardless of the crime (why, one can only wonder), employers generally must discipline for other reasons such as unexcused absences while the employee is incarcerated. Otherwise, employers often must wait for a conviction before they can legally take action and then, only if the conviction is "substantially related" to the job in question (e.g. the above example of the bank employee convicted of embezzlement). But for employers in Minnesota and most other states that lack laws protecting arrested employees, the Foster v. City of St. Paul case may not be the end of the legal fighting. Will a Minnesota state court entertain a public policy wrongful discharge claim based on the principle of innocence until proven guilty, if properly plead? We certainly hope not. Placing the rights of the accused (even those wrongly accused) above the rights or even the safety of others who have not been accused of any wrongdoing seems unfair. After all, if the courts in Minnesota afford protected status to those accused of crimes, where does it stop - murder, treason, assisting terrorists such as Al Qaida?
