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UEI benefits DQ; Public Policy exception?

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  • UEI benefits DQ; Public Policy exception?

    Hello there, I am curious about Colorado's law on the legality of a private employer (no licenses required; not law enforcement agency) demanding I provide my arrest record and explain what happened 15 years ago on a MD solicitation conviction in California. Where might I be able to find a description of the legal violation for an employer to require such action? Any recourse other than unemployment insurance claim? I have searched numerous websites along with the Dept. of Labor website but cannot find it. It may relate to my involuntary termination from gainful employment as it turns out. While I believe an employer under an at-will agreement may terminate employment for little to no reason, I have read in other states that a public policy for UI benefits exception may apply here. Briefly; while employed as an assistant director I was wrongfully accused by the local police department for failing to register as a sex offender, on a tip...

    1. The detective provided a criminal report with grossly misleading information to my HR department. I was called in on a Thurs afternoon and fired the next day, Friday. 3 weeks later (after I initiated the investigation) I received a letter from the District Attorney's Office, the DA Investigator's Office, and the Sergeant of the reporting Detective clearly stating I was not in any violation of law. Subsequently the report was labeled to be "unfounded - cleared". Problem: 15 years ago I had a MD conviction in California for solicitation (under-cover vice Detective); it was all Dismissed 14 mos after cnvctn date (1993), including no jail time, summary prob; court records show. The Colorado detective associated the wrong CA penal code and concluded the crime follows Colorado statutes, which would require me to register... Point: my employer did a thorough background investigation prior to offering me the nationally-searched position (interviews lasted 9.5 hours) where there was no application form since it was salary/exempt. HR confirmed there was "no arrest record; cleared" (maybe statute of limitations on record file?).

    2. To conclude, I filed for UI benefits but was DQ'd because I did not disclose the 1993 conviction "on my application" as well as citing the police report. CO Dept of Labor Appeal Hearing is set for Jan 6 with employer attorney and HR reps. They are already aware of the updated police/DA reports but choose to ignore them.

    Would Public Policy for not disclosing such dismissed records be a good argument on my behalf, considering the employer did not require any licenses or was not a law enforcement agency? Simply a private employer. Denver ACLU cordially responded with, "was I incarcerated, shot, or anyone killed?" wow.

    Any ideas? Thanks a million!

  • #2
    I take it you don't like the answers you've received on the other sites where you've posted this?

    The answers are not going to change.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      Re: Post response

      Thank you for your post. Yes, it seems they never really answered the question(s). Perhaps it was an oversight, but there were 3 distinct inquiries and they chose only to focus on one.

      Besides, is it illegal to keep trying and posting on as many sites as available? After all, those of us who are having these problems must find SOME help. Otherwise we wouldn't be posting, wouldn't you agree?

      Comment


      • #4
        I thought the answer was pretty clear, myself. But since you did not:

        Where might I be able to find a description of the legal violation for an employer to require such action? It is not a violation for an employer to inquire about arrest that did not end in a conviction unless that arrest was for civil or miltary disobedience. You cannot find a description of the "legal violation" because it is not one.

        Any recourse other than unemployment insurance claim?
        No.

        I hope the answer is now perfectly clear.


        And no, it's not illegal, but when a poster is obviously answer-shopping, it gets rather annoying for the responders.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          This is what I've found so far, and perhaps why I could use anyone with employment law knowledge to expound on since I do not have a degree in law, nor practice as an employment law attorney.

          In Martin Marietta Corp. v. Lorenz, (Colo. 1992) the Supreme Court outlined the elements of a public policy wrongful discharge claim:

          Colorado based Hall & Evans (2008) point out "that an at-will employee, therefore, will establish a prima facie case for wrongful discharge under the public-policy exception if the employee presents evidence on the following elements: that the employer directed the employee to perform an illegal act as part of the employee's work related duties or prohibited the employee from performing a public duty or exercising an important job-related right or privilege; that the action directed by the employer would violate a specific statute relating to the public health, safety, or welfare, or would undermine a clearly expressed public policy relating to the employee's basic responsibility as a citizen or the employee's right or privilege as a worker; and that the employee was terminated as the result of refusing to perform the act directed by the employer. To these elements we add the additional requirement that the employee present evidence showing that the employer was aware, or reasonably should have been aware, that the employee's refusal to comply with the employer's order or directive was based on the employee's reasonable belief that the action ordered by the employer was illegal, contrary to clearly expressed statutory policy relating to the employee's duty as a citizen, or violative of the employee's legal right or privilege as a worker."

          I am simply trying to find out or get reasonable and intellectual ideas where I can find information to support this. If by my posts someone else benefits from the information at least, wouldn't you agree then that this website has accomplished a service to humanity? What may be annoying are answers that are not really answers...

          Comment


          • #6
            I'm still not seeing where you are getting a public policy violation.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              I really don't either. Sorry.
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

              Comment


              • #8
                As for not getting answers, you were told categorically on the other board where you posted this, by more than one attorney, that no violation existed. That tells me that despite your claim that you aren't getting answers, you're not looking for the legal answer; you're looking for someone to tell you what you want to hear. That's not what this board is for.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                Comment


                • #9
                  Discrimination, Wrongful Termination, Public Policy?

                  Thank you once again for your response. Maybe I have been mistaken for the purpose of this website, and must move on. Thankfully there are cases such as Miranda v. Arizona which defied the common belief of how the law was interpreted at the time. Unfortunately many of us are left with the belief there is only one answer when there could be a myriad based on the totality of circumstances, hence the need for a "second" or even "fifth" opinion. Can you imagine if Miranda's attorney gave up the first time what would have continued to happen?

                  Here's one last answer I found from Austin, Texas, Employment Attorney John F. Melton, "Although it may vary from state to state, the principal reason why an employer does not ask whether or not you have ever been arrested is not necessarily because it is against the law to ask the question. The reason it is usually very dangerous for an employer to ask a potential employee whether they have ever been arrested is that it tends to have a disproportionate impact on minority applicants. An employer that asks people whether they have been arrested in an interview or on an application opens themselves up to a potential lawsuit based on race discrimination. The fact that the question was asked is not necessarily illegal, it can, however, be evidence in a discrimination case.

                  "Many employers ask about convictions, and usually there is nothing wrong with them doing so. It is often a legitimate question to ask and will usually not open the company up to a discrimination lawsuit. An arrest simply requires probable cause, while a conviction requires the state to prove its case beyond a reasonable doubt, a much higher standard. Therefore, courts will often view asking about a conviction as legitimate, while asking about an arrest will often be viewed as discriminatory." See? This helps.

                  I realize and recognize your time is valuable, and understand if you bypass my posts for other inquiries (on other public internet boards as well). Unless you have sources to cite so postees like myself can do further reading. Otherwise, who would agree the best response is one that offers readers the source of the moderator's supplied "facts"? We are real people with REAL problems, and must seek conventional/non-conventional ways to resolve our problems. I apologize if this offends you or annoys you.

                  Comment


                  • #10
                    The purpose of this website is to provide general, legal information. It is not to do your legal research for you or to encourage you in cases that do not appear to have a basis in fact. You have been told by several attorneys, as well as others, that your situation does not constitute a public policy violation. You are, of course, free to disregard this. It will not, however, change the legal answer.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                    Comment


                    • #11
                      Your thoughtful and insightful responses are appreciated. Since you took the time to respond, please allow me to respectfully retort.

                      Perhaps then I am asking the wrong questions. For the 1 that was answered I will take it under advisement. I may have been mistaken under the impression of this website or any "free legal advise website" that someone with legal knowledge of UEI Appeals would be able to expound on either my question or have the insight to rephrase my question in the form of a question if need be.

                      The objective is to try and see if anyone has had experience with UEI Appeals similar to my circumstance. I would like to be able to provide reasonable and prudent information at the hearing to avoid an ICAO Panel appeal, or worse, Supreme Court appeal. After reading many of the case laws found at http://www.coworkforce.com/icao/Libr...tional_Act.asp for example, it would appear some could have been avoided had they the right legal information to begin at the first UEI hearing.

                      Comment

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