A while back I wrote a hypothetical about an employee being fired for asserting his fifth amendment rights:

After the police do a search of his {Jerry Gomez’s} office at W&S {his employer}, his boss and a corporate VP call Gomez into a meeting. Gomez assures the firm that he did not commit any crime and says that he is perfectly willing to take a polygraph to that effect provided that is the only question asked (the concern being that the police could subpoena the results and find out more than he wants to tell them). Likewise, beyond assuring them of his innocence, he will not explain any of the circumstances surrounding his relationship with Toomey for fear that they will be subpoenaed. The firm finds this unacceptable and they issue Gomez an ultimatum: fully cooperate with the authorities or you’re fired. Gomez refuses to cooperate and is fired.

Meanwhile, out of Britain:

A man convicted of murder has lost his employment tribunal case against Royal Mail which he claimed had breached his human rights when it sacked him.

Roger Kearney, 57, was convicted in June last year at Winchester Crown Court of stabbing his married lover Paula Poolton, 40.

But his employers, Royal Mail, sacked him from his job as a van driver in January 2010 because they said he had committed gross misconduct.

But he claimed he had been sacked prematurely because he was not found guilty of the offence until June.

Different circumstances, obviously, one reminded me of the other. Speaking on the subject, a guy named Chris Hoey remembers an old case in the US that had a different result:

In a case I briefed and argued on behalf of the NLRB while serving it its Enforcement Division of its General Counsel’s Office, one of the individuals found to have been fired for his union activities later confessed to having murdered his mother. The crime had taken place before his activity, in fact he was on the lam while he became a union protagonist. The NLRB ordered he be paid back pay from the day of his discharge up until the date of his conviction, a decision upheld by the 6th Circuit in 1959. I don’t have the cite at hand, but the employer was Keco Industries, and it only took the court about three weeks following oral argument to decide in the Board’s favor.

I assume that Hoey is referring to this case, though I can’t find any details on it other than the ruling.


Category: Courthouse

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