[BDSM-LegalIssues] Re: New book -- good but disturbing
--- In BDSM-LegalIssues@
>
> > -----Original Message-----
> > From: cadenas_sd
> > Sent: Saturday, January 05, 2008 2:09 AM
>
> > --- In BDSM-LegalIssues@
> > <malc@> wrote:
> > >
> > > > -----Original Message-----
> > > > From: Vicki
> > > > Sent: Friday, January 04, 2008 5:52 PM
>
> [ Snip ]
>
> > > > Ummmmm. The assertion they ave been working on is that
> > companies are
> > > > acquiring and using arrest records to make hire and fire
> > decisions.
> > >
> > > Sorry, Vicki, but if you'd bother to read the thread you'll
> > see that
> > > it is the FACT of the arrest that Cadenas and Wiseman are so
> > > interested in, not the RECORD of it.
> >
> > That's a meaningless differentiation.
>
> Although the differentiation isn't "meaningless"
> exactly.
>
> (If arrest records were private and automatically shredded on
> release, i.e. the record was never accessible, the fact of the
> arrest still creates all the same issues).
Which was one of Jay's original points. Companies should not be
allowed to make personnel decisions based on arrests. Period.
> > Jay's issue was twofold:
> >
> > - employers use the fact of the arrest to make
> > employment-related decisions.
> > - employers learn about the fact by accessing (appropriately
> > or not) arrest records.
> >
> > Ultimately, though, the issue would not go away if the
> > employer learned about the arrest some other way.
>
> Indeed. On this we are agreed. And, remember, those arrest records
> are generally public information, and changing that may have all
> sorts of unfortunate consequences elsewhere.
Didn't somebody else post earlier that accessing them was a felony?
> > > > >In either case, "the people" (including employers) have probable
> > > > >cause to believe that the crime has been committed!
> > >
> > > > Not exactly. That would be the DA acting on behalf of
> > "the people".
> > > > If it were the people we would not need messy things like
> > trial by
> > > > jury.
> > >
> > > Again, you misunderstand. The "messy things" are not to
> > test whether
> > > there's probable cause (that's the job of the prelim), but whether
> > case is
> > > proven.
> >
> > The point, though, is that the arrest itself is not even
> > probable cause. What you seem to be proposing is the approach
> > "the police and DA must know what they are doing" instead of
> > insisting on a separate analysis.
>
> No, I'm stating that if there is smoke, then the reality of our
> litigious culture means that it behooves an employer to act in some
> way.
"When there is smoke" is just rephrasing what I've been saying: "the
police and the DA must know what they are doing". An arrest must not
be considered "smoke" in this context.
Would you also argue that an employer is acting appropriately if he
refuses to hire blacks in our litigious culture? After all, blacks are
arrested far more frequently than whites.
> Personally, I am of the opinion that the approach where those
> arrested disclose the fact and circumstances of the arrest to the
> employer is the best that you can do,
There are a couple very troublesome aspects with such a policy:
- Fifth Amendment. Such a statement could potentially end up in the
trial and undermine the person's defense.
- Discrimination. So the person discloses the facts of the arrest, and
it turns out that the arrest was unwarranted - but he had to disclose
that he is homosexual.
- Privacy. Unless it is relevant for the employer, it is plain none of
their business.
> and trust that (as Sassy noted) one's competence as an
> employee will result in being granted some leeway (possibly of the
> "take some time off to sort this out" variety).
You are putting an awful lot of trust in people who haven't proven to
be very trustworthy here. Employers tend to treat employees as
disposable anyway; such a "take some time off" approach only exists in
the good-old-boys clubs of top management and politics.
> > Of course if the employer learns about underlying facts, then
> > those may sometimes warrant personnel decisions.
>
> Umm, if you're going to dismiss the fact of the arrest as being
> worthy of consideration, how does an employer distinguish (without
> leeway) between allegations -- which is all they are until trial --
> and "facts"?
I don't understand the question. The allegation is part of the arrest
record, so it is just as much irrelevant here unless the employer has
some corroboration.
> In truth, all the employer has are "underlying allegations"
> expecting an employer to contact the victims of an alleged assault
> to determine whether their employee was culpable is patently
> ridiculous!
Yes. And it is just as ridiculous that an employer is allowed to use
the same unverified allegation to make a personnel decision.
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posted by Annja Sue at
5:55 PM
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