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Posted on Sunday, May 13, 2007
GUILTY OR NOT, YOU CAN BE FIRED
BY TIM POTTER AND JERRY
SIEBENMARK
The Wichita Eagle
Friends University has recently dealt with
what could be any organization's nightmare: An employee in a top
position gets charged with a serious crime.
The situation raises questions of whether an
employer can or should fire an accused worker before the courts have
decided whether the person is innocent or guilty. Friends University
fired Wayne R. Morgan Jr., who had been associate vice president for
academic affairs, on May 2. The action came two days after Johnson
County authorities charged him in an Internet sex sting, alleging he
went to Olathe intending to have sex with someone he thought was a
15-year-old girl.
Friends didn't wait to see whether Morgan would be
convicted of the felony charge, electronic solicitation of a child
under 16.
The university most likely has plenty of legal
standing and latitude for firing Morgan, say some lawyers and other
professionals who deal with employment issues.
"The fact that he's presumed innocent in the
criminal courts has nothing to do with his employment," said Wichita
employment lawyer Doug Mackay, who has worked as a Sedgwick County
and Johnson County public defender.
"The university has to act to protect its
reputation," said Mackay, now with the firm of Kutak Rock LLP.
The 'at-will' factor
One key factor is that Kansas is an "at-will"
employment state, meaning employees can be fired for any reason, or
no reason at all, as long as the firing isn't discriminatory under
state or federal law, Mackay said.
The "at-will" situation applies unless a person
has an employment contract or comes under civil service due-process
regulations or collective-bargaining agreements that provide
protection against firing.
Someone in an executive position would probably
have a job contract spelling out what would qualify as a reason for
termination, Mackay said.
But considering "the nature of the charge and the
circumstances of the arrest," Mackay said, he can't envision any
contract that wouldn't allow for Morgan being fired promptly, before
his case goes to trial.
Most employment contracts allow for firing someone
in a situation like Morgan's, where an employee being charged with a
serious crime could affect the organization's reputation because it
draws negative attention, Mackay said.
A Friends spokeswoman told The Eagle that the
school fired Morgan, who had been at the university for less than a
year, because he violated its Internet use policy. Gisele McMinimy
said the violation was related to the charge.
A decision that Morgan had violated the
university's Internet policy "would be just one more reason to sever
the relationship," Mackay said.
Because it is a personnel matter and involves a
criminal investigation, McMinimy said, she wouldn't discuss
specifics of the violation or say whether Morgan had an employment
contract.
Morgan, who previously worked at Sterling College
and Hutchinson Community College, has not responded to messages
seeking comment.
On May 1, investigators seized a computer from
Morgan's office at Friends, McMinimy said.
On April 30, hours after Morgan's arrest in
Olathe, investigators took two computers from his home in Haven, in
Reno County.
Because Morgan worked for a private school, not a
state college, it would be less likely there would be grievance
hearings that could delay a firing, Mackay said.
Internet stings typically involve overwhelming
evidence against defendants, Mackay said, noting that authorities
said Morgan was arrested at an undercover house.
Even if Morgan or someone in a similar position
had a contract saying that a firing could occur only upon a
conviction, many organizations would be willing to face the
possibility of a breach-of-contract action later to quickly distance
themselves from an accused employee and protect their reputation,
Mackay said.
What employers can do
Attorneys and human resources professionals said
an employer is generally protected by state law when firing
employees if they are charged with a crime.
"An employer or employee can terminate a
relationship at any time, with or without cause," said Kyelene
Flaming, a human resources and training consultant for the Arnold
Group and president of the Wichita chapter of the Society for Human
Resource Management. "That's global for Kansas employers."
Flaming said most companies have policies that
address the consequences for employees charged with crimes. Whether
they immediately terminate or suspend the employee differs by
company, she said.
Alex Mitchell, who practices employment law at
Klenda Mitchell Austerman & Zuercher LLC, said despite the
protection afforded employers, there are a couple of situations
where employees can't be promptly fired because of a criminal
charge.
If the employee is a union member working under a
collective bargaining agreement, it typically addresses whether they
can be fired immediately or are entitled to an arbitration hearing,
depending on the crime with which they are charged. The same is true
for some government employees, Mitchell said.
The issue of whether to terminate can get more
cloudy when considering the employee's value to the company,
Mitchell said.
"Do you back your employees and uphold the
presumption of innocence until they are convicted?" Mitchell said.
Some local employers, such as Intrust Bank, have
specific policies on employee conduct related to the company's
standing.
"Any conduct that discredits the bank, disrupts
operations or is offensive, may be grounds for disciplinary action,
including dismissal," Intrust spokeswoman Diane Iseman said.
Other employers said they wouldn't be quick to
fire an employee charged with a crime.
"I think we all too often tend to barbecue people"
before we know all the facts, said Mark Hutton, president and owner
of Hutton Construction.
"As an employer, I would be very cautious to make
sure I wouldn't convict an employee before the court does.
"You owe them that. They need to have a fair
shot."
Dan Monnat, a
defense lawyer with the Wichita firm of
Monnat & Spurrier, said it seems unfair for Morgan to be
fired while he is presumed innocent in a criminal court. The loss of
his job makes it more difficult for him to defend himself, Monnat
said.
Protecting your brand
Closely related to the issue of firing in a
situation like Morgan's are public relations considerations.
"You're in the brand-protection business, and
Friends has a brand that they've been forming and burnishing for
decades," said Al Higdon, retired chairman and chief executive of
Sullivan Higdon & Sink advertising agency.
"When something like this crops up, you need to
get the bad news behind as quickly as possible and move on," he
said.
"And you do that by coming out early and
forthrightly announcing what your decision is, and stand by it and
look to the future. Your job is to protect your students and protect
the image of the university.''
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