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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 37903
Experience:  I provide employment and discrimination law advice in my own practice.
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I was hired by a company with whom I have an at-will status

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I was hired by a company with whom I have an 'at-will' status with. At the time of hiring, neither in my job application nor in my interview was I asked if I had ever been convicted of a felony etc... I was convicted of a sex offense in Utah and am now living in Hawaii. I am in compliance with my registration etc... and have until 2016 to be on the registry, and at that time will return to Utah to petition for my name to be removed.

My question is: Recently it was brought to my employer's attention that I have this history. I was told that an individual 'Googled' me and found my information. My employers have asked for my resignation and after several meetings and the support of my immediate team & supervisor, I've been given until approximately the end of December 2013 to work here. They have however asked for my letter of resignation so that they may advertise my position.

I've expressed my concern of resignation in that I can't claim any kind of compensation and was told that if I so choose, they will tear up that letter in December and 'terminate' my employment so that I may receive compensation.

I've recently found something that says I may actually be in a protected class... due to arrest and court record. Is this true? This company never did their part upon my hiring to check my past, and only now that it is brought to their attention do they want to 'sever' their connection with me.

I'm so confused and torn on what to do.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

This is a bit of a tough situation, and I am genuinely sorry to hear that you are exposed to such backlash. Under Haw. Rev. Stat. § 378-2.5(a), an employer CAN take into consideration your criminal record but only if it 'rationally relates' to your position. In other words, if your conviction has nothing to do with your work, the employer cannot use it against you. Instead, that would indeed make you a protected class and could permit you to pursue them for violating your rights under state law. You are not quite a protected class, the employer simply is given some leeway, but at the same time you would be protected to some extent if your conviction is not related to your position.

As for resignation, I agree that resigning creates an argument that you would not be entitled to benefits. That can be bypassed however--you can get the employer to agree, in writing, to NOT contest your unemployment benefits if you resign. If they agree to sign such an agreement, it would likewise be binding so if you do resign you would be able to seek benefits from the state.

Good luck.

Customer: replied 1 year ago.

Thank you so much for your feedback! I'm thinking my conviction may 'rationally relate'. Who would make that determination? In my mind it could possibly 'rationally relate' in that I was a teacher at the time of my conviction and my offense was with a minor.


 


Currently I am the director of student services for the college I work at. Although these students are no longer minors, would that still have a 'rational related' connection?


 


Would it be best to write my letter of resignation with what you stipulated about them not contesting my unemployment benefits if I resign?


 


Mahalo,


 


Jae

Expert:  Dimitry K., Esq. replied 1 year ago.

Mahalo, Jae.

Hmm, if you work with 'minors' in any capacity, specifically that college has individuals under 18 who enter, then your conviction may rationally relate since you would then have potential contact with minors and then the college could be concerned, rightly or not, that there could be an incident. Plus, from their perspective, they now have additional liability since they are aware that you have such a history and do have some contact with individuals who are under the age of majority. In that sense they could utilize that as a basis and I would suspect they could get away with termination by making such an argument against you. Now, if nobody there is a minor then there is no rational relation to your position.

If the former is the situation then resigning but with stipulations may be wiser.

Hope that helps.

Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 37903
Experience: I provide employment and discrimination law advice in my own practice.
Dimitry K., Esq. and 2 other Employment Law Specialists are ready to help you

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