Employers faced with an employee who has suddenly landed in jail are typically paralyzed with what the heck to do next. It’s easy to see how criminal and employment legal issues start to commingle in that case, but there are many other situations less dramatic where an employer needs to navigate through the tricky world of criminal law.
And then add in a global pandemic where the courts are largely on pause. Here are some tips on how to handle a criminal law matter in your workplace.
1. Expect and Plan for Delays
Criminal matters often take longer than expected. The justice system is a process that moves at its own pace. As a result of COVID-19, Courts have largely put non-urgent criminal matters on hold. Jury trials have been suspended until the fall, and Judge alone trials are on hold until at least July.
Some matters are proceeding remotely via telephone or video conferencing, but not all criminal matters can be dealt with virtually. As a result, delays to the Court system will be numerous and wide-spread, causing an inevitable backlog to what was an already overburdened system before COVID-19.
Coming into contact with the Criminal Justice System can be a difficult experience, whether you are a victim, witness or the accused. Being a participant in the system can have life-altering implications. Understanding what to expect and how to proceed is key when navigating the justice system. In Canada, every person who is charged with a criminal offence is presumed innocent of the offence up to and until they either plead guilty or are found guilty after a trial. However, the presumption of innocence does not mean that the fact that a person was charged won’t have immediate consequences.
2. Understand the Bail Conditions
If your employee is charged and released on bail, you’ll want to understand the conditions of the release. Being charged may mean bail conditions, travel restrictions and other kinds of conditions that govern what the person charged can and cannot do.
For example, if you are a transportation operation, your drivers could be turned away at the border or not be allowed to drive or leave the province. If you are running a daycare and the allegations are related to a sexual offence, you can be sure there will be a direct impact on whether the employee can return to the workplace.
3. Understand the Context of the Charges (Let the Judge Do the Judging)
The context leading to a criminal charge will always be very important to consider. What is the performance history of the employee? Is the charge related to his or her role? Is this a pattern or a one-time error in judgement? Is the charge related to growing one too many pot plants or is it murder? Is the charge related to protesting racism? Context does matter.
Location is another key factor. Whether the charge occurred while the employee was at work versus an incident unrelated to the workplace may be a key distinction. How the charge and any release conditions imposed will affect the employee’s ability to continue to work will be case-specific.
4. Ask Lots of Questions
There are a number of key questions an employer should consider:
- What information do you require from an employee who is charged with a criminal offence to assess their suitability to continue in their role?
- Does your current employment agreement contemplate such a scenario? Should it? Can it?
- What kinds of charges would affect your employee’s ability to work for you?
- Is there something unique to the role or your industry that impacts whether the employee can keep working for you?
- Are you in a regulated profession that requires an additional layer of reporting to your governing body?
- As an employer, how can you ensure the safety of your other employees as required by your obligations under Ontario’s Health and Safety legislation?
- Was this part of a pattern of behaviour? Having an employee who is charged with an offence may be a sign of other issues in the employee’s life that may require a leave of absence, access to medical treatment or accommodation.
Employees who are charged with a criminal offence may consider:
- What information am I required to provide to my employer?
- Am I in a role that requires me to disclose a criminal charge?
- Am I in a regulated profession with strict requirements that I risk breaching?
- Do I have a good character requirement, or a requirement that I be eligible to pass a certain level of criminal background check, such as a vulnerable sector check?
What Is the First Step?
The first step is to ask a lot of questions and really understand the full context and circumstance, including what your regulatory body may require if applicable.
The next call is likely to a lawyer to start protecting the business and/or your ability to return to work. A criminal charge is always a very serious, very stressful moment for both the business and for the employee. Often, the employee is very embarrassed and equally unsure about how to proceed.
If you are an employer or manage a workplace where employees may be charged and need to consider these issues for your employment contracts or office policies, we can help. We have a number of lawyers with experience working through the criminal/employment law overlap, including Jessyca Greenwood, a seasoned criminal and employment law litigator. Having advised on thousands of cases and after conducting hundreds of trials, Jessyca understands the intersection of the justice system and workplaces, particularly regulated workplaces such as accountants, real estate agents, lawyers and paralegals, as well as members of regulated health professions, such as naturopathic medical practices, psychologists, massage therapists, and speech-language pathologists. She helps both employees and employers navigate the system and ensure best practices for their workplaces. You can contact Jessyca Greenwood directly at firstname.lastname@example.org.