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Thursday, January 31, 2008

Not Quite Convicted

I was recently terminated from an employer because they had claimed that I had provided false and inaccurate information on my employment application which I dispute. In particular, there was a question asking if "I had ever been convicted for a crime in which a pardon has not been granted?". The answer to this question is no and that is what I answered. However, I do have an outstanding charge going back from about 6 years ago which still has not been resolved. Nevertheless I do not have any criminal record nor any sort of conviction on file. The employer claimed that I had lied on that application but I simply did not, it is completely the honest truth.

After I was terminated I applied for Employment Insurance and I was granted it. The folks at the Employment Insurance office agreed with me that I had not been fired for a just cause and recommended that I might want to pursue this issue with the Human Rights Commission. So I have recently filed a complaint about this issue to the Human Rights Commission and am awaiting their response.

I was just wondering, in your experience, is what the company did legal? I do not feel it is right at all because I was completely honest and I was a great worker with a good work record.

You didn't lie. The Unemployment Insurance people agreed with you. (Now, HR people will say that the unemployment insurance people grant unemployment to anyone who didn't actually commit murder while at work, except when you truly laid someone off through no fault of their own and suddenly they want extra information and a sacrificed chicken in order to approve the claim.)

So, in short, I don't know what you allegedly did, but if it was bad enough I can see why the company may be willing to face a fine rather than have you on board. Doesn't make it legal, just understandable.

Hopefully you'll be able to clear up this legal problem without getting a conviction. In the mean time, take your unemployment and go out and look for a new job. If you want to pursue this with the Human Rights Commission (are you Canadian?) go ahead. But, don't sit home moping. Go get a new job.


Anonymous said...

oh thanks. Yeah I just don't get it though, I mean this is the 2nd time it's happened in the last 6 years. I don't know how I'm supposed to answer employment applications if employer's don't want the truth. :-) I just don't know if I'm supposed to lie and say that I do have a record or not, you see the dillema?

Just another HR lady... said...

Depending on which province or juristiction you're in of course (assuming you are Canadian), most Human Rights Acts in Canada state that you are not permitted to discriminate against a person "who has been convicted of a crime for which a pardon has been granted". The applications you're filling in have been very careful to toe the line on asking this question.

So, yes, you probably do have a case from a Human Rights perspective if the employer is saying that they terminated your employment because you lied on your application.

However, if the employer actually terminated you for having an unresolved legal charge against you, that is a bit of a different story. That doesn't fall under any Human Rights legislation as far as I know anyway? And I can think of many industries where having certain outstanding legal charges against you could negatively affect your employment status. This wouldn't be considered a just-cause dismissal so you may be entitled to "appropriate notice or pay in lieu of notice" under your provincial or federal juristiction, but that would be a case for your Department of Labour, not Human Rights.

My suggestion? Get your legal charges sorted out ASAP, six years is a long time.

And speaking of a long time, the last Human Rights Case that I was involved in (from the employer side), lasted about 5 years from start to finish, and in the end the Human Rights Commission found no case for discrimination. It's a very long and exhausting haul if you are considering going this route.

Sorry for the long post, thought-provoking topic!

Ramona said...

I think you should disclose that you have an outstanding case so there aren't any surprises in the future. Is it unresolved because you are appealing the decision or unresolved because you've not shown up for court appearances? They won't know this. Unresolved does not necessarily mean "not guilty." If an employer is going to run a background check and things pop up that you didn't disclose, it won't look good for you. Don't get stuck on semantics, learn from this if you can. I'm not sure where you are located, but I live in a employment-at-will state and unless I terminate you for a discriminatory reason, you would have nothing substantive for which to file a charge.

Good luck and I hope you find a new job soon. If this is the second time its happened in the last 6 years, you should perhaps disclose rather than go through this again.

And yes, Unemployment agreeing with you is not a spectacular feat. Nearly everyone who applies for UI gets unemployment benefits.....sometimes even if they kill someone (I work in Healthcare, I know).

Just another HR lady... said...

Hi Ramona...just an interesting legal tidbit for you..assuming this person is Canadian (as they mentioned the Human Rights Commission), here in Canada "employment-at-will" does not exist. Employment in Canada is contractual, so we can only terminate for "just cause" or with "reasonable notice" as per the applicable juristiction. Makes life rather interesting at times. :-)

Anonymous said...

…as an aside to the issue, ‘human rights commissions’ (HRC’s) do happen to exist in the good ole USA. They are generally county or city organizations that have cross filing relationships with the EEOC; similar to any state agency. My favorite HRC is located in East Chicago, Indiana. This office reports to the Mayor (read: pay to play, or normal Chicago area politics). Their jurisdiction includes several enormous steel mills, a huge refinery, and a host of assorted smaller industrial plants – all heavily unionized. You can imagine the “stick” that this office believes they carry. I’d hate to be the city attorney in the jurisdiction.

Anyway, if you’re in the US, the use of charges rather than convictions in determining eligibility for employment is against the law and clearly discriminatory. If you’re not in the Great White North, and that facts are as you state them, you’ve go a case.

Anonymous said...

Thank you for all the responses. Yes 6 years is an extraordinarily long time, my lawyer says he's never seen a case like mine drag out. I've been told in the past year that there is a strong likelihood that this case would be dropped due to the length of the proceedings.

Yes I'm Canadian. I'm just finding myself in a very strange situation where I don't have any record or anything when an employer checks.

Wally Bock said...

There really two issues here. Technically, you're correct. You weren't "convicted" of anything. The state agrees with you. Whoopee.

The problem is that you were hiding something from the people you agreed to work for that you knew might be damaging to your status. You can weasel-word it all you want, but you committed a lie of omission and rationalized it based on legality.

Here's another question. How did your employer discover this?

Anonymous said...

I have to strongly disagree that I hid anything. My Job application had 2 simple check boxes for the question, Yes or No, with no comments field or anything asking me to elaborate.

It is silly to expect that I should elaborate on absolutely every detail in my life when it isn't asked. Do you feel the need to elaborate on your personal life by telling your employee how often you have sex in week? Change your underwear? or anything else for that matter?

Anonymous said...

The fact is that I have no criminal record yet my employer seems to think for some reason that I do? and I have no clue what to do about it?

Anonymous said...

Why would I hide something that I neither wasn't asked, nor was even expected as a condition of employement? The condition of employement was clearly that I am not convicted of a crime. Which is completely true.