question about DWI (employee, apply, employer, job)

[Nepenthe]

A friend of mine was recently arrested for a DWI. It's in Texas, it's the first offense (Class B Misdemeanor), and there were no other circumstances such as a wreck or injury. She did not take the breathalyzer but did submit to the field sobriety test and failed. The case is two and a half months old and virtually nothing has been done on it. She has retained an attorney.

We both work in the financial services industry, for a registered broker-dealer. She was once Series 7/63 licensed but has worked in a non-licensed area for a couple of years so is not currently licensed. The firm has a U-4 registered with FINRA.

Our firm is conducting its semi-annual ethics push to get employees to report life events. One of these events includes ARRESTS as a "significant event" (minor traffic violations are specifically excepted while DWI, even arrest only, is specifically listed as a required disclosure). This does not make sense to me. She is innocent until convicted, correct? How can the firm compel her to admit to an arrest when she may well have the charges eventually dismissed? Reporting a conviction I can understand, but reporting an arrest for a misdemeanor before it's even gone to trial seems unconstitutional to me.

The dilemma is what if the arrest is reported and the charges are dropped, now she's disclosed it needlessly -- on the other hand what if she doesn't report the arrest and is convicted and now has to disclose it and they see she didn't disclose the arrest...

Thanks for any help!

[Charles]

Originally Posted by Nepenthe

Our firm is conducting its semi-annual ethics push to get employees to report life events.

How can the firm compel her to admit to an arrest when she may well have the charges eventually dismissed?

now she's disclosed it needlessly --

and now has to disclose it and they see she didn't disclose the arrest...

Is it mandatory employees provide their arrest information? If not, why not just ignore the "ethics push" (whatever that really is)?

What does "compel" really mean?

[Spazkat9696]

Originally Posted by Nepenthe

minor traffic violations are specifically excepted while DWI, even arrest only, is specifically listed as a required disclosure

There's your answer.

[Nepenthe]

Originally Posted by Spazkat9696

There's your answer.

Thanks.

But is that Constitutional? They can write whatever they want on the form, and ignore individual rights in the process, and bully employees into doing something that is not in their best interest.

[SouthBound47]

Originally Posted by Nepenthe

Thanks.

But is that Constitutional? They can write whatever they want on the form, and ignore individual rights in the process, and bully employees into doing something that is not in their best interest.

Unless I missed the amendment about not have to disclose things not in your interest, it probably doesn't violate Texas law. And no, the 5th doesn't apply here, sorry. But I'm sure it would make a great story to talk about if your friend pled the 5th.

[Nepenthe]

Originally Posted by SouthBound47

Unless I missed the amendment about not have to disclose things not in your interest, it probably doesn't violate Texas law. And no, the 5th doesn't apply here, sorry. But I'm sure it would make a great story to talk about if your friend pled the 5th.

This implies any type of arrest no matter how frivolous the charges, no matter how easily they were eventually dismissed and expunged, would be something the employer could coerce any employee into disclosing.

Said arrest disclosure itself could get an employee fired, regardless of whether the charges are dropped.

It just screams abuse to me. The employer is not waiting for any sort of court decision, but is basically treating the arrest as an automatic guilty.

Thanks for the responses.

[Camden Northsider]

I would tell her to talk to her attorney about this disclosure if it could affect her employment- it's highly unorthodox for companies to do this much less "require" disclosure of this sort. If driving is a requirement of the job, and she drives clients and/or is insured by the employer as a driver on official business I could understand, but otherwise I don't see the business necessity here regarding the DUI disclosure (I suppose they are on the lookout for anyone who might be liable to commit fraud?).

Also- knowing if others have disclosed this type of thing in the past and what the outcome was would be helpful- if someone else disclosed a DUI and wasn't reprimanded, then a precedent's been set and there could be risk for them to take any adverse actions against your friend. Similarly, if there haven't been any performance issues on the job and/or they aren't documented, then I would think it could get risky firing someone for DUI if it's not related in any way to the job and a case could be made that it was a health issue. considering there's no conviction also I would think a case could be made for wrongful termination (but I'm not a lawyer).

Regardless of whether or not there'd be any direct adverse actions taken, letting your employer know that you recently got a DUI doesn't necessarily help out your rep as an employee.nnIt's a tough call- if she discloses it she should do it in person, explain the situation in a professional manner, and discuss that she's working with a lawyer to get it dismissed and that it's an embarassing, isolated incident that will not happen again or in any way affect her job performance.

[rlrl]

to check Texas state laws regarding whether an employer can ask if you've ever been arrested. New York does not allow an employer to ask if an applicant has ever been arrested (except for law enforcement) but rather if the person was ever convicted. my hunch is that since Tx is in the south where things are less liberal, they may be able to ask about arrests but that's only a guess

the other thing is that in NY the Consumer Reporting law prohibits anything pertaining to an arrest from showing up in a background report unless there has been a criminal conviction for the arrest or the arrest is still pending

so if the NY law is similar to Tx, it's possible the arrest may show up. it's arrests that did not lead to a conviction (acquittal, dismissal) that usually can be considered unconstitutional

also, if texas does not have it's own version of the FCRA, it defaults to the Federal model. the federal model states that arrests can be reported for up to 7 years

[rlrl]

should be specific. they shouldn't just ask "have you ever been arrested" they should ask "have you ever been arrested and entered a plea of guilty or have been found guilty at trial" or "do you have any pending charges?". but i guess they don't always have to

[SouthBound47]

You know, there was probably a clause in the employment contract, the one no one ever reads, that gives the employer this right... Employers aren't dumb, and fighting the inevitable won't make it any better.