[BDSM-LegalIssues] Re: Arrest records, et al.
Well, in actuality, the concept of "innocent until proven guilty" is
a standard by which the government is required to operate. Companies
aren't required to proceed under the same standard that the
government is when determining criminal guilt or innocence. Of
course, not even a trial can truly determine innocence. It can only
determine if there is enough evidence to convict, in the opinion of
12 people or a judge. And that standard isn't the same away from
criminal court. In civil court, there must only be a preponderance
of evidence, in the opinion of a jury or judge. In other words, a
civil court can find a defendant responsible, or "guilty", based
solely that concensus opinion, regardless of a criminal verdict.
I can't imagine that a company would be required to hold any greater
standard than that. And, since a company doesn't have the same
resources a courtroom has, that company can only rely on the
judgement of it's officers or personnel directors. So, those
individuals are forced into a risk-assessment for the company. Once
again, people have been focused only on the single employee or
applicant. A company owner has a much greater scope to be concerned
with.
It's rather pollyannish to think that a company is going to put
itself at that much risk. As I pointed out before, these
hypothetical companies have to consider not only this single
employee, but all their other employees and their clients, not to
mention the degree of risk the situation presents.
Let's look at the daycare center. They have, let's say, 10 employees
and a manager. There are 100 clients. 1 employee gets arrested for
child molestation, but is released. The arrest is in the local
papers. The manager decides: "Hey, he's innocent until proven
guilty," and decides to retain him, and besides he was engaging in
legal consensual sex with his girlfriend, due to local consent laws.
The daycare clients perform their own risk-assessment and 80% of them
decide that it's not worth it to expose their children to a potential
threat. The daycare can no longer afford to remain open, because 80%
of it's income is now gone. The other 9 employees and the manager
have to find new jobs and the manager is now tainted with the
decision to retain a suspected child molestor and causing the
business in her care to fail. The manager's risk assessment was a
failure, in this case.
The carpet cleaner whose employee was arrested for shoplifting?
Well, he was magnanimous and kept this person on the payroll, pending
the outcome of the trial. However, unknown to the business owner,
the accusation against his employee is true. The next week, they are
cleaning a house and sticky fingers picks up a valuable diamond
necklace while the owner is off getting the crew lunch, disregarding
the talk the owner had with him. That evening, the business owner
gets a visit from the local police, because he's bonded and is
therefore liable for the actions of his crew. He's arrested for
grand theft, because of the value of the necklace. The real thief is
caught, and the business owner is cleared of the charges, but now
word of mouth gets out and he loses his clientele because of the two-
fold fact that some people believe he was in on it, regardless of the
police outcome and others are simply horrified that he would bring an
accused thief into their homes. Again, his risk assessment was wrong
and not only was his reputation ruined, but all his other employees
might also be tainted with the accusation that they were involved in
the theft, making it harder to find work themselves.
The DUI? That one's easy. The business owner gives his employee a
breathalyzer in the morning before he leaves the garage. All good,
right? Well, this morning, the stress of the upcoming trial gets to
our fictional accused drunk and he hits the bar for a few drinks at
lunch. If that breathalyzer was used now, it would read 0.07, below
the legal limit, but enough to impair his driving. I suppose it will
be enough to tell the families of the children in the school bus that
he hit broadside that the business owner exercised due diligence by
giving him a breath test in the morning, so the owner and the company
should be held blameless for the wrongful death and personal injury
lawsuits that come about. Now, his insurance carrier refuses to pay,
because the driver was under the influence of alcohol and the owner
knew about the DUI arrest. So, all the assets of the company become
forfeit in the ensuing lawsuits, as do all of the owner's personal
assets, since both the company and the owner are named as defendants
and the civil courtroom only requires that there be enough evidence
to convince a jury that the defendants are responsible. And, again,
the company is gone and the other 350 people who worked for it are
out of work.
Are these extreme examples? Absolutely. And that is part of risk
assessment. Look at the worst possible scenario and decide if you
are willing to take the risk, should the outcome be that bad.
What we have is people operating under RACL, Risk-Aware Consensual
Life. Business owners are not required to operate against their own
self-interest, nor should they be. They are required to provide a
safe working environment to their employees. They are required to
provide a fair wage to their employees. Their clients are going to
require them to be trust-worthy and reliable. Otherwise, they will
find someone else to do the work. Retaining people with questionable
backgrounds or reputations runs counter to the best interest of the
company. We do it all the time in our personal lives, but it seems
that corporations are required to operate as if they are some sort of
societal resource at the disposal of anyone and everyone who wants to
take advantage of that resource. That's simply not true.
No one has a right to a job. They have every right to pursue
employment in any field they choose, but no one is required to hire
them. It is not the fault of any company that a person made poor
choices in their earlier life. But, it seems that some believe that
corporations should be constrained in the form of risk assessment
they use. In a free market, a responsible company learns to balance
their need for employees versus the risk of employing people. Unless
we, as a society, are willing to put limits on the liability
corporations face, then those corporations should have the right to
decide whom they employ.
Draco
--- In BDSM-LegalIssues@
wrote:
>
> --- In BDSM-LegalIssues@
> wrote:
> >
> > --- In BDSM-LegalIssues@
wrote:
> >
> > > I always thought one was "innocent until proven guilty"
> > >
> > > Draco does make some good points though about patterns &
> > perceptions
> > > but without solid proof, all is just circumstantial and a form
of
> > bias.
> >
> > Everything we decide is based on some sort of bias.
> >
> > Let me pose a hypothetical. You run a day care center. An
employee
> > has been arrested for child molestation, but has been released on
> > bail. You know nothing more about the case other than what you
read
> > in this evening's paper. Do you allow him to report to work in
the
> > morning?
>
> How about, you investigate? Of course a daycare center should be
> concerned about child molestation. So it behooves you as daycare
> operator to get the facts, rather than just an allegation. An
unproven
> allegation - which may well have come about as the result of a nasty
> divorce - shouldn't be the basis for any decision.
>
> Then you decide based on what you found out. For instance, if it
turns
> out that his name was Genarlow Wilson, and he was arrested for, as a
> teenager, having consensual sex with his teenage girlfriend, you
> continue employing him.
>
> > Less provocative hypothetical: You run a carpet cleaning
business.
> > Your employees enter peoples homes and clean the carpets. The
same
> > employee was arrested for shoplifting. You have the same lack of
> > further information. How do you proceed?
>
> Hold a company meeting reminding all employees that theft from
> customers is a serious offense. Possibly also an individual private
> meeting with that employee.
>
> > How about if he was arrested for DUI? He drives your company
truck.
>
> Check his driving record. That's the only legal document you should
> rely on. I think it might also be reasonable to give him a daily
> breathalyzer test for the two months or so until the DUI worked its
> way through the courts.
>
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posted by Annja Sue at
12:15 PM
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