I have had people call me with this sad story. “When I applied for a job several years ago, I told the company about a criminal conviction and they hired me anyway; now, they ran a criminal history check and the old conviction turned up and they fired me for it”. “Can they do that?” The answer is yes and no. Yes, in that most states have “employment at will”, which means you can be fired for any or no reason, they don’t need a good reason, unless the termination is the result of the violation of a specific statute. There is no specific statute protecting someone from being fired for an old criminal history. The no part is more of a “maybe”. Some have tried to bring Title VII discrimination claims alleging that a company rule that precludes hiring or retaining anyone with a criminal history affects more minorities, and therefore, discriminates against them based on race. This has not had a lot of success. The Third Circuit in El v. Septa, 479 F3d 232, (3rd Cir. 2007) upheld the defendant’s defense of necessity based on statistics showing likelihood of recidivism. However, since that time, other studies show that the likelihood of an offender committing another offense drops to the same as a non-offender within 7-10 years. This is good news for employees with this problem. In Texas, another avenue is the case of Goodyear Tire and Rubber Co. v. Portilla, 879 S.W.2d 47 (Tex.1994). In the Portilla case, Goodyear fired an employee for violation of their anti-nepotism policy. In this case, Goodyear had expressly waived its anti-nepotism policy by knowingly allowing the employee to continue working after learning of the violation. The Court rejected the employer’s argument that an employer has the right to change its mind on enforcement of policies against an employee. The Court stated that the at-will doctrine has always been subject to specific contractual agreement defining an exception, that Goodyear had done so with Portilla and waived the right to discharge her for nepotism. The problem with this case may be that it is a 1994 case and has not been confirmed by the Supreme Court since, nor favorably followed by lower courts. In any event, the courts would strictly enforce this concept of waiver of a right to discharge at will unless there was a clearly and specifically expressed waiver of a right to discharge and/or there was an agreement to restrict the discharge at will along with specific reasons agreed upon as to what is waived or on what grounds an employee could not be dismissed at will.
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