IntroDisclaimer. The author is not a lawyer and this article should not be construed as legal advice.
What does a martial art school owner do when an employee or student is suspected of breaking, or breaks, school policy, rules, or regulations, or the law? With a record number of people now in jail and crackdowns underway nationwide against drugs, drunk driving, etc., more school owners than ever are finding themselves having to answer this question. If school owners act purely on instinct without consulting legal counsel, they may be putting their schools, and themselves, in jeopardy.
Presumed innocentThe media have made the presumption of innocence seem to be some right, but it is not. It a term used in the courts when a person is tried for a crime. If the police and prosecutors presumed everyone innocent, they would never have a suspect. As an employer, you may presume guilt; however, how you act upon the presumption is what may cause you problems.
SuspicionSuspicion is just that; you suspect a problem, but you cannot prove it. You may confront the person with your suspicions and hear what they have to say. You may investigate further while ensuring your investigation does not impute the reputation of the person. You may watch the person’s behavior more closely. If the suspicion involves contact with students, you may limit the person’s contact with students. What you do in response to a suspicion depends upon the circumstances and law.
Policy concernsAny policy for dealing with employees or students who are suspected, arrested, charged, or convicted of a crime should be concerned with:
- The nature of the business.
- The nature of the crime.
- The expected length of incarceration.
- Whether the criminal conduct has relevance to the job the person performs.
The policy should be reviewed by legal counsel prior to implementation and should provide clear language relating to when on or off-duty conduct will result in a suspension or termination or place the employee on inactive or suspended status with or without pay.
For a person who is charged and tried, the policy should provide for reinstatement upon acquittal. For a conviction, the employee should be terminated.
When policy is brokenFirst, the school must have a written policy that has provisions that deal with what to do with someone who breaks the policy. Unwritten school policy is not legally enforceable and practically useless in civil or criminal courts.
It is relatively easy to handle student misbehavior. When the student’s contract expires, you simply refuse to renew it. To terminate a student before the end of the contract, refer to the contract terms to see what options you have (ensure your contract covers this contingency). For month-to-month students, you just ban the student from the school at the end of the month. For a serious offense, you may even refund the tuition and ban the student immediately. The length and severity of the ban depend on the offense. It may be that the student is allowed to come to class but must sit on the sidelines and not participate for a period of time.
For an employee who breaks the school’s written policy, the employee may receive a verbal and documented warning, may have pay withheld, may be placed on leave with or without pay, or may be terminated. Be sure you get legal advice before acting because every city and state has different laws.
WHEN LAW IS BROKENEmployers have a legitimate business interest in learning about their employee’s off-duty conduct since some crimes could be an indicator of a probable workplace security or safety concern, especially in a martial art school environment where there is direct contact with students and students are taught to obey their seniors.
The U.S. Equal Employment Opportunity Commission (EEOC) position is that asking applicants about arrests is discriminatory since minorities statistically tend to have a higher rate of arrests and convictions, and such inquiries on a pre-employment basis could result in disparate treatment of applicants who are members of a protected class. However, the EEOC does not prohibit employers from taking appropriate disciplinary action up to and including termination when an employee has been incarcerated or convicted of a crime provided that such decisions are made because of a valid business interest and the employer’s policies or practices are applied in a fair and consistent manner to all employees.
School owners should consider implementing a policy that specifically addresses the school’s position on arrested/incarcerated employees and students. School owners who do not wish to create such a policy may instead choose to follow whatever policy or practice is currently in place for dealing with unexcused absences.
Before making any decision on an employee’s job status, employers should first consult legal counsel and consider all available options. Employers must be aware of their employees’ rights and always act in accordance with them. Making the wrong decision may result in a costly lawsuit, a disgruntled employee, and even a demoralized staff.
Owners should not talk to uninvolved third parties, such as the media or non-management employees. Employers are under an obligation to safeguard an employee’s legal rights, including not harming their reputations. Employees who do not have supervisory or decision-making status should not be included in discussions related to an employee’s arrest. Unnecessary disclosure of information could potentially result in a defamation claim if the employee is later acquitted or the charges are dropped.
Employment or union contracts may limit an employer from pursuing a termination or other disciplinary action, so the terms of these contacts must be checked carefully. An employment agreement may have very specific reasons for termination, and an arrest may not be among them. Acting against an unionized employee usually must satisfy a ‘just cause’ standard in a collective bargaining agreement. If the union feels this standard has not been met, it might file a grievance and ultimately take the case to binding arbitration, creating a financial exposure for back pay and reinstatement. This may well be the case if the alleged offense occurred outside of work and on the employee’s own time.
School owners may be more tolerant of alleged crimes involving poor judgment, such as a recreational drug possession type of charge. However, they may be more likely to take disciplinary action against an employee accused of a more serious offense involving violence, dealing drugs, or inappropriate contact with children or the opposite sex.
Larger schools or chains of schools are more concerned than smaller schools with the impact an employee’s arrest may have on their brand identities and reputations. Therefore, they may be more likely to impose a zero-tolerance policy, while a small school may be more supportive of the accused employee.
A suspected or arrested employee or student may disrupt the operation of a school by their mere presence. Co-workers may be reluctant to work next to someone accused of a violent or other serious crime, students may not want to be associated with the person, and parents may not want their children in contact with the person.
Management must always be aware that students and other employees are closely monitoring the situation to see how it is being handled. Ultimately, they are concerned about how they would be treated by the school if they are ever in the same situation.
When an employee or student is suspected, arrested, or charged with a crime, as a school owner, before taking action, you should:
- Gather all the facts. Determine as much as you can about the reason for the arrest, potential charges, circumstances involved, and what the immediate future looks like for the person and for the school.
- Consider all your options. For example, you could grant the person a leave of absence while they deal with their legal issues or move the person to a less public position pending the outcome of the situation. Even without a clear school policy dealing with such a situation, if an employee does not call in advance to report an absence, he or she could be terminated for cause, as a no-show no-call. Your absentee policy could also cover termination for unapproved absences, such as incarceration.
- Maintain privacy. Be sure to maintain the privacy of the person.
- Be sensitive. Be sensitive to the concerns and needs of your other students and employees.