RE: [BDSM-LegalIssues] Re: Vicki's codification attempt.
At 06:52 PM 1/10/2008, Malcolm Weir wrote:
>I think the lengthy delay that often occurs between an arrest and trial
>makes any kind of guaranteed "they can go back to work" utterly impractical.
>Not to mention the issues of, say, a downsizing occurring while the arrested
>party is on leave: can his job be eliminated, and if so under what
>circumstances?
That problem seems to have been addressed in the cases of maternity leave.
>Note that the time prior to a trial can be wildly variable...
speedy trials? Perhaps if the trial is not speedy charges should be dropped?
Now there is a messy kettle of fish but then again if there were
fewer laws to break
we could focus on criminal activity more :) But that too is a
lengthy discussion.
>Oh, and what about appeals? If convicted, but the sentence is stayed
>pending appeal, can he be fired then?
I believe that is a fair question. Feel free to suggest an answer.
>And while it is true that temps can sometimes fill in the gaps, that's not
>always practical (e.g. with senior staff).
Lots of things are not always practical. Companies do them anyway.
>Another complication: while on upaid leave (for, maybe, years), does the
>accused accrue seniority (e.g. for vacation entitlements, retirement, etc)?
>If not, you are discriminating against him, just not as much...
No. Unpaid leave is unpaid leave. He/she is not working so they
don't get paid.
> > If a person is arrested and cleared/acquitted in the past
> > then that can not be used to discriminate against them in being hired.
>
>Wellllll... that fails to address what may be described as the O.J.Simpson
>phenomenon!
Not at all. O.J. Simpson was aquitted. ergo the arrest can not be used to
discriminate against their being hired.
You don't really think he is guilty do you? If so were you there?
>[ That one is particularly apt in that we can authoritatively state that
>under law Simpson was both responsible for the deaths, and yet not guilty of
>the murders. ]
I was quite bored with that case before it even got to the criminal
trial. Is your reference
to the civil suit? If so then that is yet another VERY long discussion.
>And I presume that any information that comes to light before and during the
>trial *may* be used as a reason to discharge?
by information you mean what?
>What about situations where the accused is acquitted, but due to the
>negative publicity he is unable to do his job as effectively as before?
Lay him or her off "with cause" not cause they were arrested but because
they can not perform their duties.
> For
>example, the child care person acquitted of rape but who is no longer
>trusted by the _customers_ of the employer?
Good question. back to an earlier comment of mine about teaching folk.
>Then what do you propose to do if, say, a layoff happens a month after the
>acquittal, and the company decides that the accused's job no longer exists;
>how do you protect against specious lawsuits by the accused alleging that
>his job should have been protected?
How do you do that now? Jobs are eliminated all the time. Protected classes
of people get laid off. That part of the system seems to work just
fine. (unless
it is you who is laid off.
How is the problem of job elimination handled by maternity leave? What if it
was eliminated BEFORE the aquittal?
>How about organizations with morals clauses?
Not covered.
> Or organizations that demand
>personal financial stability:
> if arrested, the accused may be in a much less
>satisfactory financial state by the time he is cleared, which fact may make
>him ineligible for his old job (this one does exist, by the way).
Which companies are these?
> > For the employer if they retain an employee that has been
> > cleared/aquitted and something bad happens (See insurance
> > list of fears) then the employer is specifically protected
> > from suit based on the arrest/cleared/
>
>That's one of the things that is much easier said than done. Crafting a
>policy that protects against lawsuits without infringing with everyone's
>right to sue is... difficult.
Yes it is :) As we have demonstrated here there are MANY diverging opinions
on how to handle even the simplest case of possible injustice.
> Particularly since you'll never be able to
>protect against accusations of negligence in doing whatever it is that
>you're supposed to do to protect everyone.
>
>[ Snip ]
>
> > There you go. Codified with protections for everyone but the
> > ex-con. That would be another long discussion :)
>
>It's a good attempt, but for the reasons shown, I don't think it is
>workable.
Thank you. It may or may not be workable but has all the same
kinds of problems that other laws such as maternity leave and not
being allowed to fire or not hire based on race, age, etc.
>And at the end of the day it doesn't really address the Freedom of
>Association thing. It basically makes a special class out of people who
>have been arrested, which is rather a dodgy proposition.
As I mentioned earlier in this thread since we have lots of special classes
that ALL impact the Freedom of Association thing why not have one or 3 more?
Well other then the obvious fact that it DOES impact the Freedom of
Association
thing. Something that you and I seem to be in agreement about. :)
-Vicki-
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posted by Annja Sue at
8:52 PM
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