Does an employee have to divulge to his present employer that he has a pending criminal charge against him?

Asked 11 months ago - Miami, FL

My buddy has an impaired driving charge against him, no criminal record, and the questionaire sent to him by his employer asks if he has any pending criminal charge, If he answers NO, can this give the right for his employer to terminate his employment in the future? He presently has no criminal record.

Attorney answers (3)

  1. Michael Adam Haber

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    Contributor Level 20

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    Answered . You buddy can do what ever he chooses, and no matter what here will be consequences for his choice. He can tell the truth and face the fire or he can lie and run the risk of being caught.

    Your buddy should run this by an employment lawyer but I think that he will get the same advise that I just gave. Florida is an "at will" employment state. Unless you have an employment contract which delineates procedures then he can be fired at any time and for any reason, provided it is not an illegal reason (i.e. because of race, religion, etc), but if his boss doesn't want an at will employee who is facing a DUI to remain on his payroll then I'm (the criminal and not employment lawyer) betting that he can be fired on the spot without recourse.

    First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq.... more
  2. William David Umansky

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    Contributor Level 19

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    Answered . Repost your question under labor or employment for the most appropriate answer. If he got the charge dropped, he can expunge the record if he qualifies and answer no on many but not all applications. If he pled to the charge, he has to make a judgement call. I find it better to disclose and be honest but that is your friends call to make. Regarding the legal answer to your question, I think my colleague is correct but ask a labor lawyer. Good luck to him!

    Please be advised that answering your questions does not establish an attorney-client relationship with myself or... more
  3. Jessica Michelle Rose

    Contributor Level 9

    7

    Lawyers agree

    Answered . I agree with both my colleagues that an employment/labor lawyer will have more precise insight. Because the employer specifically mentioned "any pending criminal charges," I would certainly recommend thoughtfully preparing a written response that is honest but also which provides positive facts. For example, "lack of any criminal history whatsoever, the fact that it is a misdemeanor (not a felony) for which innocence presently remains intact." The best policy is honesty and yes the charge can show up if the employer conducts a search. Depending on the type of position your friend has, the employer may be satisfied that it is not a felony or a crime of dishonesty. Also, the explorer may be interested in whether a license will be suspended and related issues. I do suggest that your friend seeks an employment attorney, often times they will help prepare a written response (lawyers and doctors seek the same expertise in answering tough questions on their applications). One last thing to keep in mind is that as my colleague mentioned, Florida is an "at will" state, so absent an employment agreement otherwise protecting against it, an employer may terminate employment anytime. It is always best to be honest but your friend can tailor a response in a way that may relieve the employer's concerns and attach it to the questionnaire. If it makes your friend feel better, I am aware of both lawyers and doctors who have been admitted to practice in their respective fields despite having DUIs on their record. I've also had many clients on DUI probation who were able to get what's called a hardship license to drive to work. Please repost your question in the employment forum so you not only received answers from criminal defense attorneys. Again, suggest that your friend considers employing an attorney to draft an appropriate response that hopefully keeps your friend on good terms with the employer and enables continuation of employment.

    Jessica Michelle Rose, Esq. is criminal defense and family law attorney with Offices in Palm Beach and Broward... more

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