CRIMINAL RECORDS

Breakin' the law

There I was completely wasting, out of work and down all inside it's so frustrating as I drift from town to town feel as though nobody cares if I live or die so I might as well begin to put some action in my life Breaking the law, breaking the law.

― "Breakin' the Law" Judas Priest

Most employers ask job applicants to disclose whether they've ever been convicted. It's a question that's usually limited to felonies but sometimes includes misdemeanors. More often than not, ex-cons fail to disclose the hard time they've served. As a result, they're rejected for lying on the application. Far fewer employers ask current employees to disclose when they have a brush with law. The Eleventh U.S. Circuit Court of Appeals (which covers Alabama) recently heard a case about an employee whose failure to "fess up" left her out of a job.

Ask all you want, but I'm not telling

Deborah Davis-Dietz worked for Sears, Roebuck & Co. as a store manager (sometimes referred to as a unit manager). Sears had a policy that required all employees to report any arrest to their unit manager within five days of the incident. According to the policy, Sears would then evaluate whether the arrest had any effect on the employee's job. Davis-Dietz was arrested for driving under the influence in October 2004 but didn't report the arrest.

In April 2005, Davis-Dietz informed her supervisor that she needed to take Family and Medical Leave Act (FMLA) leave to attend inpatient treatment for alcoholism. Sears approved her request, and she was in rehab for 11 weeks. When she returned, she informed her supervisor she would need additional time off to attend aftercare ― daily one-hour Alcoholics Anonymous (AA) meetings. Sears agreed, allowing her to make her own schedule.

A week after her return, Davis-Dietz met with her supervisor, who requested a doctor's release clearing her to return to work and told her that she needed to work her scheduled hours. Davis-Dietz told her supervisor that she would need to leave early every Thursday for the AA meetings. Her supervisor responded, "Take the days you need to take and do what you need to do, but I need to be kept abreast."

During that meeting, Davis-Dietz indicated that she needed to leave early that day to attend an AA meeting and was allowed to do so even though she was scheduled to work. On the way to AA, she made a pit stop at a convenience store and bought two "little wines that come in the little screw tops." She drank one, then began driving to her meeting. On the way, one of her tires blew out. When a police officer stopped to assist her, he asked her to take a Breathalyzer test. She was arrested for DUI, again.

Davis-Dietz didn't report this arrest to Sears, either. But she did call the company's employee hot line to complain about her supervisor, who, according to Davis-Dietz, was "completely not compassionate and couldn't have cared less" that she needed to attend AA meetings. She explained that she "had a gut feeling that things weren't going right" and that her supervisor was angry with her for having been in the hospital and for her alcoholism.

When Davis-Dietz returned from her regularly scheduled vacation, her supervisor met with her and asked if she had been arrested ― which she admitted. She was then terminated for failing to report the two arrests (which she characterized as minor traffic violations).

Back in court

Davis-Dietz sued Sears for sex discrimination, disability discrimination, and retaliation for taking FMLA leave. To support her sex discrimination claim, she argued that her supervisor only liked strong women, and her alcoholism was viewed as a weakness. She also pointed to two male employees who had been charged with DUI but hadn't been terminated. Finally, she claimed that she had complied with the policy by reporting the arrests to the unit manager ― in this case, herself.

Sears explained that another employee had alerted it to Davis-Dietz's unreported arrests. The two male employees hadn't failed to report their arrests, which was the reason for her termination, not the underlying charges. The court bought that distinction and held that Sears was entitled to hold Davis-Dietz to a commonsense application of the policy (she should have reported to her supervisor), even if a literal reading allowed her to report it to herself.

Although the policy stated that Sears would investigate the circumstances of the arrest, the court concluded that it wasn't required to do so since Davis-Dietz failed to report the arrest within five days, as mandated in the policy. Davis- Dietz v. Sears, Roebuck & Co. (11th Cir., 2008).

You'll never know if you don't ask

In Alabama, you have the right to inquire into an applicant's or employee's criminal history, including arrests and convictions. The Equal Employment Opportunity Commission, however, takes the position that using arrests (as opposed to convictions) in your hiring decisions can have an adverse effect on minorities.

When using either arrests or convictions, you should evaluate the nature of the offense in light of the job at issue (e.g., tax fraud would have a greater impact on an accounts payable clerk than a janitor) and the age of the offense. Current arrests should play a bigger role with existing employees since the charges may not be resolved for a long time and can create public relations issues.

Copyright 2008 M. Lee Smith Publishers LLC

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