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Publications | November 25, 2019
3 minute read

The Crossroads Between Criminal and Employment Law

Employment law and criminal law intersect on occasion. This means that employers may need to consider the impact of criminal law from time-to-time. These intersections occur pre-employment, after an employee has received a job offer and even during employment. This article highlights these intersections. 

Pre-employment: “Ban the Box”

Civil rights advocates have been advocating “ban the box” legislation across the country, with significant success. “Ban the box” laws prevent employers from asking applicants on the initial employment application whether they have been convicted of a crime. “Ban the box” laws protect applicants with criminal histories from immediate rejection without the employer first considering the nature of the crime or the applicant’s later rehabilitation. Currently, Michigan’s “ban the box” legislation applies only to state agencies and does not extend to private sector employers. Nevertheless, several states “ban the box” for all employers. Therefore, multistate employers, or employers with online applications available to applicants in any state, must be up-to-date on whether “ban the box” legislation affects their current application process. 

Post-employment offer: 
Background checks and the FCRA

Employers gather background information on an applicant in several ways. Employers may perform independent online searches or contact past employers. Employers also may hire third parties to conduct criminal background checks on jobseekers. When employers hire a third party to obtain information, the reports produced by the third party are subject to the requirements of the Fair Credit Reporting Act (FCRA). Under the FCRA, employers must inform applicants of their intent to use a third party to obtain a consumer report. The applicant must explicitly authorize the employer to do so, usually by signing an authorization form. If the report uncovers a disqualifying criminal history, the employer must notify the applicant and give him/her the opportunity to dispute the accuracy of the information before the employer may rescind the job offer. If the offer is rescinded, the employer must send another notice including certain details. Failure to follow these requirements can result in a violation of the FCRA. 

During employment: Workplace criminal investigations

Employers must conduct investigations when alleged criminal misconduct occurs in the workplace. This may include allegations of sexual assault/stalking or theft/embezzlement. When investigating potential criminal activity, an employer must be aware that its internal investigation may run concurrent with a formal law enforcement investigation. Below are a few tips:

  • Do not wait. Take immediate action to investigate and respond to complaints. This can help reduce financial liability, media attention and limit reputational damage.
  • Make sure you conduct your own investigation. Employers cannot assume that police are taking over the investigation. Although employers should report the possible crime to police, an employer can still be liablefor failing to conduct a thorough investigation. 
  • Cooperate with law enforcement. Although criminal investigations will usually have an impact on business operations, employers can minimize intrusion by cooperating with search warrants and assisting investigators. 
  • Be aware of conflicts. An employee accused of a crime will usually need separate counsel because the interests of the employer may not align with the employee. 
  • Consider using legal counsel. A crime means someone may go to prison. This could lead to a very serious situation. Getting legal advice early on can be very important.
  • Do not turn over privileged documents. It is important to understand which documents are protected by the attorney-client privilege. An employer can waive the privilege by turning over privileged documents to law enforcement investigators. If the privilege is waived as to a document in one situation, an employer will not have a basis to withhold that document in future proceedings.
  • Know how to maintain your investigation notes and understand what to tell the employee who is being investigated. The Michigan Bullard-Plawecki Employee Right to Know Act has very specific requirements about certain criminal investigations in the workplace and when the employee must be informed. 

The intersection of criminal and employment law can occur throughout all stages of employment. If you find yourself at such a crossroad, Warner + has experienced attorneys in both practice areas who can help you.