A client recently determined that a current employee was arrested for Operating While Intoxicated (OWI) and evading arrest, but while on his own time. The client asked trustHR | GObackgrounds to analyze the relevant issues that may arise when seeking to terminate the employee.

The below represents a Human Resources Perspective Analysis (HRPA) of the fact pattern presented by a client. Consequently, the following should not be construed as legal advice or legal opinion.

  1. Without a signed Disclosure and Authorization, which is required by the Fair Credit Reporting Act (F.C.R.A.) to be on a separate page, it is not advisable to conduct an employment background check on Mr. X at this time, because this may complicate matters going forward if Mr. X contests his termination. The F.C.R.A., 15 U.S.C. § 1681b(2)(A)(i), states, “[A] clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes . . . .” (emphasis added). The client’s employment application and disclosure are on the same page contrary to the cited section of the F.C.R.A. However, if Mr. X would complete the new Disclosure and Authorization, then trustHR | GObackgrounds would be able to conduct the employment background check.
  2. The client’s state of employment is an “employment at-will” state, which means an “employment relationship where there is no contractual obligation to remain in the relationship; either party may terminate the relationship at any time, for any reason, as long as the reason is not prohibited by law, such as for discriminatory purposes” (Bennett-Alexander & Hartman, 2012, p. 47).
  3. However, Mr. X may be covered under the Americans with Disabilities Act (ADA), because his original employment application stated that he was convicted of an Operating While Intoxicated (OWI) and one of the elements of a claim for Failure to Reasonably Accommodate a Disability states, “The employee’s need for accommodation was made known, or should have been known, to the employer” (Walsh, 2012, p. 310). Insofar that Mr. X stated he had an OWI on his original employment application, this may rise to the level that our client should have known of Mr. X’s disability in regards to alcohol abuse. Consequently, by terminating Mr. X, the company may run afoul of the ADA to reasonably accommodate. Drug testing for the use of alcohol is considered a medical examination and is prohibited under the ADA because the drug test has the potential to reveal information about a disability (Walsh, 2012).

_______________

Bennett-Alexander, D. D. & Hartman, L. P. (2012). Employment Law for Business (7th ed.). United States: McGraw Hill Higher Education.

Fair Credit Reporting Act (F.C.R.A.), 15 U.S.C. § 1681b(2)(A)(i).

Walsh, D. (2012). Employment Law For Human Resource Practice (4th ed.). United States: South-Western College Publishing.