‘Five finger discount’ incompatible with worker’s occupation

July 18, 2016

Employment Law BookThe nature of an employee’s off-duty criminal conduct justified her termination.

A tax clerk with less than three years’ service was terminated after admitting to city officials that she pled guilty to shoplifting three items of clothing, with a retail value of $187, from a department store.

Following her conviction, she was admitted into an accelerated rehabilitation program and completed the associated requirements, resulting in dismissal of the charges.

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The city also cited correspondence from its insurance carrier, which advised of the potential liability of the grievant’s continued employment. Finally, permitting an individual who had been convicted of theft to handle taxpayers’ money could lead to adverse publicity, the city asserted.

The union argued that termination was unjustified where the grievant admitted her misconduct – a “momentary lapse in judgment” – and successfully completed the accelerated rehabilitation program. Rejecting the city’s liability insurance argument, the union insisted that there was no nexus between the grievant’s off-duty misconduct and her position.

The arbitrator upheld the grievant’s termination.

City of Derby, Conn. and AFSCME, Council 4, Local 1303-259, 44 LAIS 150, 2016 WL 797780

While the grievant “acted admirably” following her felony conviction, “the fact remains that a weight of arbitral authority supports the city’s contention that a nexus exists between her misconduct away from work and the legitimate interests of the city,” stated the arbitrator.

He noted that the city did not rush to judgment as it originally ignored initial uncorroborated anonymous allegations about the grievant’s conviction. Only after receiving copies of police and court documents did management conduct an investigation to determine the facts.

Once being convinced of the documents’ authenticity the city suspended the grievant and afforded her a hearing with union representation before effecting her termination.

The grievance was denied.