Our California company intends to provide iPads to all of our sales employees, but to make sure we can locate the iPads if they are lost or stolen, we plan to use the iPads’ GPS capabilities to track their locations. As an added bonus, we’ll also be able to track the sales employees themselves. Any concerns with this plan? Answer→
We are a private employer in the State of Minnesota and are expanding rapidly. In years past, we have received hundreds, sometimes thousands, of applications for each position advertised. In an effort to increase efficiency in the identification of qualified candidates, as well as in preparation for an anticipated round of hiring in the New Year, we plan to update our applications for employment. We would like to incorporate a number of new questions, including whether the applicant has a criminal history. Are we prohibited from including this question in our application? Answer→
I am the general counsel of a corporation in the medical device industry. Our company has its corporate headquarters in Minnesota, but we are incorporated in Delaware and have operations in 30 of the 50 states. Recently, I received a grand jury subpoena to produce documents — and learned that the Food and Drug Administration, the FBI, and the Department of Justice are each investigating whether our company violated criminal laws by shipping a medical device that the government believes had not been approved for use by the FDA.
After contacting the Assistant United States Attorney handling the case, I learned that one of our executives is a subject of the investigation. The government has contacted that executive and wants to interview her. She intends to retain counsel to represent her interests. She asked me whether the corporation will pay for her counsel. Does the company have to pay for her counsel? Even if the company does not have to pay, may the company do so anyway? If so, under what terms and conditions? If we decide not to pay for the attorney’s fees, can the executive challenge our decision? Is there anything else I should consider before we make a final decision? Answer→
When Is a Proscription on Convictions an Impermissible Predilection? EEOC Issues New Guidance on the Use of Criminal History in Employment
Earlier this week, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated Enforcement Guidance (“Guidance”) regarding the circumstances under which employers permissibly may, under Title VII of the Civil Rights Act of 1964 (“Title VII”), rely on arrest and conviction records in employment decisionmaking. See EEOC, Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (April 25, 2012), http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. The Guidance, while clarifying the agency’s position on this issue, also portends additional burdens for employers who need or want to consider applicants’ and employees’ criminal records. Answer→
Quirky Question # 148:
Here’s a question that you may have addressed in the past. Unfortunately, the situation arises periodically and we’re still not sure how to handle it.
We recently learned that one of our employees is a convicted sex offender and is registered with a state agency as such. We want to terminate his employment. Will we be risking liability if we do so?
Quirky Question # 113:
We recently discovered that one of our executives opened up a joint checking account in a different state in both his name and the name of the Company. The Company is a privately held company doing business in 40 states.
The employee opened up this “joint checking account” without the Company’s knowledge or consent. This employee has direct contact with many of our customers and has convinced some of them to deliver checks for select purchases directly to him. Delivering checks directly to an employee (even an executive) is a direct violation of Company policy which requires that all payments be mailed to a lock box identified on the invoice. The employee is cashing those checks in his “joint checking account.” He is then using some of the money to finance his lavish lifestyle, and the rest to create unauthorized product programs for customers to stimulate business and make his numbers look higher, and thereby increase his compensation. The employee has been doing this for several years, and the scheme appears to get bigger every year which is why he has been able to hide it for so long. He uses some of the extra money he gathers each year to pay off customers in prior years. It appears at this point that customers are out of pocket in excess of $1.5 million, and the employee has spent all of the money he misappropriated except for $50,000.
Customers are starting to raise questions. Since the employee was acting in direct violation of Company policy and it appears he was doing so only to benefit himself, the Company does not have any liability for his conduct? Right? What options should the Company consider? Answer→
Quirky Question # 38:
Our company is a food retailer. We hired a convicted sex offender, who, after serving time in prison for his felony conviction, had been released. Given that he had “paid his debt to society,” we felt that we should not refuse to hire him because of his prior conviction. Moreover, because the job for which he was hired involves very limited interaction with the public, we were not concerned about any risks there.
Very few employees in our organization are aware of our employee’s prior conviction and incarceration, but as the Director of Human Resources, I am knowledgeable about the employee’s felonious past. It recently came to my attention that one of our other employees occasionally has allowed the convicted sex offender to baby-sit for her pre-teen daughter. Do I have a legal duty to intervene? What are the risks of intervention? Are there any risks to non-intervention? Answer→