Is it discrimination to fire employees for lying on their applications about convictions? 09-01-2004

Our company does not do background checks. There have been several occasions where it was brought to the attention of the Security manager that information had been obtained either from the newspaper or other means that an employee had been arrested. The Security Manager went to the courthouse and searched public records to find further information and learned that many of these employees had convictions they had lied about on their applications. HR would not allow termination stating we should not have conducted the search of public records fearing claims of discrimination from the employee. Can you advise how to handle this?

Rita Risser replies:

Many court cases have held the employer has a right to fire employees for lying on their applications, even years after discovered, even if the employees have stellar performance. I highly recommend you contact a local attorney; you could consider the following approach:

1. Announce to all current employees that security checks are sometimes conducted of current employees. If anyone has lied on their application about convictions (not arrests), they have a two-week grace period to inform HR. Depending on the nature of the conviction, the company will decide whether or not to keep them, but if they come forward, they will not be fired for lying on their application. If they do not come forward and it is found out, they will be fired for lying on application.

The following parts are not announced, but are adopted as policy --

2. Employees who come forward who were convicted of a felony directly related to their job will be fired. Examples: treasurer convicted of embezzling, childcare worker convicted of child abuse. Past drug and driving while intoxicated offenses should not be considered due to possible Americans with Disabilities Act implications. (Current drug and DWI offenses, while employed, are grounds for termination if job related.)
3. Employees who come forward who were convicted of felonies not directly related to their job, and conviction more than 10 years old, will be kept in their jobs.
4. Employees who come forward who were convicted of felonies not directly related to their job, and conviction less than 10 years old, will be handled on case by case basis.
5. Misdemeanors will be considered only if directly related to job, less than 10 years old, and the person originally was charged with a felony.

Again, I highly recommend you consult with a local attorney. Good luck.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.