Advertisement

July 25, 2014

Paid Leave Can Be a Lawful Option When an Employee Is Facing Criminal Charges

Paid administrative leave for an employee who is charged with a crime is not a materially adverse employment action for purposes of proving an employment discrimination case, according to a recent federal appellate court order. The 10th Circuit's decision in Benavides v. City of Oklahoma City, is a useful reminder for employers that thorny legal issues may arise when an employee is accused of criminal wrongdoing. The Benavides case illustrates that while an employer cannot prevent an employee from filing a charge of discrimination or lawsuit with respect to employment decisions, a well-reasoned decision-making process can go a long way to support the employer's defense that its actions were not discriminatory.

Plaintiff Roland Benavides was a police officer who brought claims of discrimination, harassment, and retaliation under the Americans with Disabilities Act and the Family and Medical Leave Act. During plaintiff's employment, a co-worker brought forth concerns that the plaintiff was involved in illegal gambling, and the plaintiff was summoned before a grand jury and subsequently indicted. Per City policy, he was put on paid administrative leave while the criminal matter was pending. Meanwhile, the city investigated the plaintiff's claims that co-workers had subjected him to workplace harassment because he took a leave of absence due to various medical conditions.

In the disability discrimination and retaliation case, the plaintiff argued that the administrative leave was an adverse action, an argument that the appellate court rejected. The appellate court also noted that even assuming the plaintiff had been able to show that paid leave was materially adverse, the plaintiff failed to establish that the City's reason for placing him on paid leave -- because he faced charges of illegal gambling -- was pretextual.

This case confirms that a paid leave of absence is among the options open to employers who are faced with an employee who is under arrest. Because each case is fact-specific, and because some states (including Illinois) have laws that restrict the use of arrest information in employment decisions, it is prudent to seek the advice of counsel when faced with an employee who is under arrest or indictment, both to deal with the immediate job-related concerns and to lay the groundwork for defense against potential claims.

© 2014 BARNES & THORNBURG LLP

About the Author

Jennifer Cerven, Labor and Employment Attorney, Barnes Thornburg Law firm
Staff Attorney

Jennifer Cerven is a staff attorney in the Chicago, Illinois office of Barnes & Thornburg LLP, where she is a member of the Labor and Employment Law Department.

312-214-8323

Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to t