The #MeToo movement and other social forces have put a lot of attention on how many people appear to continue working as normal even after they have been accused of awful behavior. In some high-profile cases, employers have parted ways with employees after social media users and the news media linked the workers to abusive behavior.
This may lead some employers to question whether they can legally fire an employee simply because they were arrested or accused of misbehavior. Likewise, the situation may prompt some workers to question whether they can be fired because of things that they were accused of outside of work.
The answers to these questions are very complicated.
At-will employment and contracts
New York is considered an “at-will employment” state. This means that employees can generally quit for any reason, and employers can fire workers for any legal reason. An employer can’t fire a worker for reasons that violate anti-discrimination laws, whistleblower protection laws or other laws. Otherwise, they mostly have free rein to terminate employment whenever they want to.
That said, many employment contracts impose some additional limitations. For instance, unionized workplaces may require union leadership to be involved before a worker can be fired.
Arrested or convicted?
Many employment contracts specify that a worker who has been convicted of a crime while they are employed may be fired, whether the crime occurred in the workplace or not. The tougher questions are:
- Can an employer legally fire or refuse to hire a worker because of a criminal who was accused of a crime in the past but not convicted?
- Can an employer legally fire an employee who has been accused of a crime but has not yet been convicted?
Some local ordinances provide protection for such workers. For example, New York City’s Human Rights Law limits employers’ ability to ask a worker about prior brushes with the law. It also requires that employers conduct what’s called a Fair Chance Analysis before they take disciplinary action against a current employee who has been accused of a crime but not yet convicted.
For better or worse, there is no one answer to the questions we have raised in this blog post. These issues can only be decided on a case-by-case basis after examining the specific circumstances, any contracts involved and the applicable laws.