RE: [BDSM-LegalIssues] Re: Vicki's codification attempt.
> -----Original Message-----
> From: Vicki
> Sent: Thursday, January 10, 2008 8:52 PM
> 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.
Under Family and Medical Leave Act, that leave is limited to 12 weeks.
If you take a criminal trial, and for grins I'll pick a Canadian example
(but US ones need not be significantly different in duration), that may last
rather longer: for example, the arrest happened on Feb 22, 2002, verdict
delivered December 9th, 2007, or more than 302 weeks (25 times as long).
> >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?
I'm afraid your ignorance of the criminal justice system is showing.
Generally, the accused waives their right to a speedy trial... because the
state doesn't file until they've got (most of) their case in order, while
the defense needs to time to discover the state's evidence, investigate it
where appropriate, etc. So a speedy trial is often an advantage to the
prosecution (and if the accused is actually guilty, and they believe they'll
get convicted, what's the rush?)
[ Snip ]
> >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.
I don't think either option is a good one. Whichever way you go, someone
gets treated unjustly. That's one of the multiple reasons I believe your
scheme is unworkable.
> >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.
That's a lousy answer. You were theoretically trying to protect the rights
of everyone involved, but that answer shows that you're not really making an
effort...
> >Another complication: while on unpaid 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.
OK, so you're comfortable with discriminating against the accused.
Which just leaves us with the question of the acceptable degree of
discrimination.
> > > 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 acquitted. 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?
I *know* that, in law, he was responsible for their deaths. A jury said so.
Which is why I wrote:
> >[ 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. ]
[ As an aside, you may want to read the whole post before replying, because
then you don't say silly things like "you don't really think he is guilty"
when I've just written "we can authoritatively state that ... Simpson was
.... not guilty of the murders". I mean, how more explicit could I be? ]
> 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.
No, it isn't a long discussion at all. Simpson was found not guilty of the
crime of murder (criminal trial), but culpable for their deaths (civil
trial). One sentence is not long!
But it points out a significant flaw in your solution. We can state
authoritatively that he was responsible yet he was acquitted. I.e. at the
preponderance of evidence standard, he killed them.
The flaw is that we know he did the deed, yet by your approach we can't act
on that knowledge.
And while Simpson was a very high profile case, there are many many more
where the facts of the matter aren't really in question, but a conviction
cannot be obtained. I mentioned another one earlier, in the Richard
Armitage/Valerie Plame affair. Or Bill Clinton's impeachment trial: he
undoubtedly did lie, but the Senate determined that it didn't rise to the
standard of a "high crime".
> >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?
Umm, information?
An obvious example would be evidence offered by the defense that admits some
wrongdoing, but which mitigates the prosecution'
smoking weed elsewhere when the murder happened"; the state obviously has
little chance (or interest) is a narcotics prosecution, but your employee
has just admitted a crime, so why wait to fire him? Ain't no question of
his innocence, is there!
Or how about if the facts of a civil action come to light in a criminal
trial, and you have evidence offered by the employee that is either a
confession of (unrelated) wrongdoing, or perjury, so in either case grounds
to discharge.
> >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.
Re-read the question. The issue is not that they can't perform their
duties, but they can't perform them as well.
But have another problem: what if the employer is involved in the criminal
trial as, say, a victim? If the guy gets acquitted, is it justice if the
organization pressing charges has to retain the guy?
Still, it hardly seems fair that an employer has been forced to keep a
position open, maybe for years, only to discover that accused is no longer
capable of doing the job! And if you read ahead, you'll get the rest of the
unfairness..
> > 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.
That's not exactly a solution to the problem, though. Well, it's not even
the _start_ of a solution...
The rest of the unfairness, from the above, is that there are plenty of
situations where it is clear from a very early age that the accused won't be
trusted by your customers... But you're prohibiting the company from acting
until the trial is complete.
Of course, the other part of the problem is that your solution imposes costs
on the employer even in the cases where the employee is convicted, by
mandating that the job remain available in case he returns. If he gets
convicted, the employer has been stuck in limbo for (sometimes) several
years, which is hardly fair.
> >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.
The problem is that the numbers complicate the matter substantially. In a
large organization, during a layoff, the chances are that multiple people
who are members of the protected class get impacted. But with this
storm-in-a-teacup, there's only likely to be one individual. Which makes it
hard on the employer to demonstrate that the layoff was fair, and easier on
the accused to unfairly gain protection that other employees don't have.
> How is the problem of job elimination handled by maternity
> leave? What if it
> was eliminated BEFORE the aquittal?
FMLA: 12 weeks. Criminal trial: 5+ years.
> >How about organizations with morals clauses?
>
> Not covered.
I.e. the consequence of your proposal may be an increase in the number of
employers insisting on morals clauses. I *really* think that's a Very Bad
Idea...
I mean, you've argued extensively about the applicable standards of evidence
in criminal cases; with a morals clause, all that's moot!
> > 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?
Not that it's relevant, but some jobs in the finance sector require clean
credit.
(And anything needing a clearance, so I'm told...)
> > > 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.
Hence my conclusion: your scheme is unworkable.
(And that's without the point that the number of individuals impacted by
this sort of thing is obviously not large!)
And then you can't do _anything_ about the hiring problem, where the arrest
is noted but not cited as the reason the guy doesn't get the job (even if it
is a significant part of the reason).
Which -- in my view -- makes any effort to implement your scheme for _that_
rather pointless.
> > 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.
Yes, it does have those kinds of problems, but significantly aggravated (12
weeks vs several years) and with some of its own that none of your examples
have, such as the "Simpson problem": you know there's wrongdoing, but
there's no conviction.
And while it's statistically possible to show discrimination based on race
or gender, it's much significantly harder to show anything based on the
_much_ smaller numbers likely to be involved.
> >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?
For the same reason that you don't casually erode the Freedom of Speech
thing: it's a slipper slope...
> 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. :)
Don't get me wrong: if there were some way that one could create an
effective approach that would ensure social justice and fairness, then an
effort to implement it would be worthwhile. But I think it's clear that
there is no way one can craft something that is simultaneously effective and
fair and just, short of the "social safety net" mentioned by Travis, and
even that isn't going to be as effective as one would like.
At the end of the day, all that seem achievable is a "feel good"
non-solution that imposes additional cost on employers for no real benefit
to anyone. And given the lack of applicable victims, it seems a complete
waste of time to bother.
> -Vicki-
Malc.
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posted by Annja Sue at
2:36 AM
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