Last week, former Subway pitch-man Jared Fogle was sentenced to more than 15 years in prison, after pleading guilty to charges of trading in child pornography and paying for sex with minors.

Subway had cut ties with Mr. Fogle months earlier, after police raided his home in July of this year.  In the circumstances, few would question the wisdom of Subway’s decision from a public relations perspective.

But what about the legal perspective?

As an employment lawyer, I’ve advised a number of employers on their options in circumstances where an employee is accused, charged and/or convicted of criminal activity.

In the criminal courts, a suspect is innocent until proven guilty – but that presumption of innocence does not necessarily provide the individual with much job security.  In that regard, in Ontario[1], an employee’s criminal history/record of offenses limits an employer’s discretion only insofar as:

  • the Human Rights Code prohibits discrimination on the basis of any criminal offense for which a pardon has been granted, and any Provincial offense (i.e. violations of regulatory and quasi-criminal Provincial statutes, such as speeding infractions under the Ontario Highway Traffic Act); and
  • to the extent that certain criminal charges/convictions may be indicative of a disability (e.g. impaired driving and/or drug-related charges may be suggestive of alcohol and/or drug dependency, which are considered disabilities under the Human Rights Code), employers must be careful to avoid discrimination on the basis of the actual or perceived disability.

Accordingly, employers in Ontario have considerable latitude in addressing situations in which an employee has been accused, charged and/or convicted of a criminal offense. Particularly in circumstances where (as in the case of Mr. Fogle) such accusations, charges and/or convictions (a) are particularly unsavoury, and/or (b) put the employee – and his/her association with employer – in the public eye, the employer will have an understandable public relations imperative to distance itself from the individual.

That distancing exercise may take the form of an “administrative leave” or termination of employment; but it is an exercise that must be approached very carefully. To be clear, an employer will rarely be in a position to place such an employee on unpaid leave or to terminate his or her employment on a “just cause” basis – rather, the leave would in most cases need to be a paid leave, and termination would in most cases need to be on a “not for cause” basis.

In that regard, it is well-established that the laying of criminal charges does not constitute just cause in and of itself. Rather, alleged criminal conduct by an employee will generally only constitute just cause if (a) it has a nexus to the employment relationship (e.g. the employee is accused of stealing from his/her employer), and (b) the employer’s own enquiry into the circumstances establishes that the employee has engaged in misconduct that would give rise to “just cause” in the employment law context.

Similarly, actual criminal conduct by an employee (i.e. for which he or she is convicted, or in respect of which he or she pleads guilty) will very likely not constitute just cause unless it goes to the heart of the employment relationship – i.e. rare circumstances in which the criminal conduct also represents employment-related misconduct (e.g. the employee is found to have stolen from his/her employer), or the conduct is fundamentally incompatible with the employee’s job responsibilities and his/her relationship of trust with the employer (e.g. a chief financial officer is convicted of fraud and corruption, or a child-care worker is convicted of crimes against children).

Suffice it to say that when an employee is accused, charged and/or convicted of a criminal offense, that can present an employer with complicated legal and public relations issues – none of which should be approached on an impulsive or emotional basis. Indeed, if such a situation is handled rashly or recklessly, the employer may quite possibly (a) trigger (or exacerbate) the very public relations dilemma that it had sought to avoid, and/or (b) find itself exposed to liability for wrongful dismissal and/or unnecessarily damaging the employee’s reputation and future job prospects.

It is critical that any such scenario be dealt with on a “fact-specific” basis, with due regard for the element of discretion (for all involved, including the employee), and with the benefit of sound legal and business advice.