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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27887
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I live and work in California. Was recently arrested (but

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I live and work in California. Was recently arrested (but not charged or convicted) for possession of child pornography. Have been employed with the company for 12 years and have been a good employee. Employer did an internal investigation and found nothing during their investigation (reviewing my e-mail, computer, etc) giving them any grounds for termination so at this time I'm still an employee. They recently presented me with a mutual separation offer. I'm trying to decide if I should take the mutual separation offer now or sit this thing out. Do they have grounds to fire me at this point/time? Would they have grounds to fire me if I'm found guilty? Don't want to quit or take a mutual separation offer if there is hope for me keeping my job from a legal perspective. Could an "addiction" diagnosis protect my job?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning,

I'm very sorry to hear of your situation.

First of all, in California, employees are presumed to be "at will." At-will employees may be terminated for any reason—at any time, even a mistaken reason, they can have their hours or pay decreased and they can suffer a cut in their benefits, so long as it's not illegal or unlawfully discriminatory. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract. In your state, an employment relationship is at-will unless there is a defined duration for the employment contract or if the contract permits termination by the employer only under specified circumstances.

Unlawful discrimination would include an employer discriminating based upon a person’s Ethnicity, Color, Religion, National Origin, Gender or Disability.

The employer clearly may terminate you---for any reason---as you are an at will employee. The real issue here is whether they have good cause to terminate you---such that you would be ineligible for unemployment benefits. It is accepted in the law that the actions of an employee in their off-work time---when such actions bring to their employer extreme embarrassment----may be prohibits as a policy of the employer. if this is the case in your situation then you will almost certainly find it listed as a company rule in your employee handbook or the documents you should have been provided for review when you were first hired. If there is a prohibition against actions which bring the company bad press, or somehow place them in a bad light publicly---then it is possible under that circumstance that you could be terminated for good cause.


However, your situation is somewhat different in that you have not yet been convicted and the employer has found no evidence of a crime when going through your things at work. As such, it is highly unlikely that at the present you could be denied unemployment benefits based solely on allegations of wrongdoing.

As a consequence, you need to understand that if you voluntarily resign, you will lose eligibility for unemployment benefits. While you may not want to resign, be terminated or reach a mutual separation---the decision is not up to you.

A diagnosis of being addicted to pornography will not serve as a legal defense to an employer who seeks to terminate your services, nor will it form the foundation of a viable unlawful termination lawsuit---I'm sorry.

At this point, the writing is on the wall, and the best you should hope for is perhaps a mutual separation that will allow you to obtain unemployment benefits. Under CA law, there may be a separation by mutual agreement if the employer and the employee have mutually agreed to separate, either at the time of the termination, or initially, at the time of hire. In such cases the termination is neither a discharge nor a leaving and thus a disqualification cannot arise under Section 1256.

I wish you the best in 2012.

I understand that you may be disappointed by the Answer you received, as it was not particularly favorable to your situation. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so.

You may reply back to me using the Reply to Expert link if you have additional questions; and if you do, I ask that you please keep in mind that I do not know what you may already know or with what you need help, unless you tell me.

Kindly take a moment to rate my service to you based on the understanding of the law I provided
. I have no control over the how the law impacts your particular situation, and I trust that you can understand how it would be unfair for me to be punished by a (negative rating) ----the first 2 stars/faces----for having been honest with you about the law.

Thank you,

Doug

LawTalk, Attorney
Satisfied Customers: 27887
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 3 other California Employment Law Specialists are ready to help you

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