Government employer obligations for refusal to hire based on allegiations The Kavanaugh hearings have brought up an interesting point. What are the legal obligations of a government employer, when it comes to handling allegations against a prospective employee? I would like to use a different example. Instead of a Supreme Court nomination, suppose that a person is applying to a teaching position in a public school, and someone claims that she had inappropriate contact with a minor. What kind of due process is the school required to abide by in approving or rejecting the candidate? Is a mere allegation enough to warrant refusal to hire, or is there legal precedent against that?
Yes, there is legal precedent against this that would only apply to a government employee. First, let's discuss the private sector. In this case, you are a private employee that comes to your place of work and accuses you of "stealing the cookies from the cookie jar" which is a serious criminal offense. They wish to talk and your boss is in the room. You plead the 5th, but your boss says you're fired if you don't talk to the cops. This is legal because you still have the right to refuse to talk, you just lose your job. A private employer has the right to free association, and wants nothing to do with cookie thieves, alleged or actual. However, in the government employ, your boss is an agent of the government. This same situation is different because the government pays the boss and the agent... so in essence the government is saying talk or be fired. This is unconstitutional as the government cannot retalitate against you for your refusal to talk. Generally, in order to talk to you, the investigator would need either a signed Garrity Statement or a Signed Kalkines Statement. The former is a statement saying that they are investigating a wrong doing but you cannot lose your job if you refuse to speak to the investigators, where as Kalkines says you must talk but you are granted immunity for your part in the wrong doing, so long as you make truthful statements. For more on this, check this legal blog. There is also the matter that a false accusation (and let me be clear... this is academic, I'm not saying the accusation in the real life topic is false, nor am I saying that the defense is false... we're merely discussing a possibility) is made to your employer and they do not offer the job on the basis of the accusation alone, this is grounds for defamation actions... and in certain jurisdictions, it's criminal defamation, so there could be jail time. It's interesting you mentioned teachers, because this happens alot. Kids do know that there are certain things that get a teacher fired quickly, so teachers do get the occasional false accusation of sexual assault (I know one teacher who has had multiple accusations over the course of her career). One of the few good things I can say about the Teachers Union is they cover the legal defense of accused teachers. The accusations do get the teacher removed from the class for sometime, but they don't lose their jobs over this matter. It's followed up but the accusation doesn't immediately lead to the teacher getting fired..
No - at least not in South Carolina, depending on your intent. SECTION 7-25-200. Unlawful inducement to file for or withdraw from candidacy for election. (A) It is unlawful to offer or accept, or attempt to offer or accept, either directly or indirectly, money, a loan of money, or any other thing of value which includes, but is not limited to, employment or the promise of employment to induce a person to file or withdraw as a candidate for any state or federal elected office. The FEC, apparently does not see this a problem federally. Conduct that Does Not Constitute Federal Election Fraud Various types of conduct that may adversely affect the election of a federal candidate may not constitute a federal election crime, despite what in many instances might be their reprehensible character. For example, a federal election crime does not normally involve irregularities relating to: (1)distributing inaccurate campaign literature, (2) campaigning too close to the polls, (3) engaging in activities to influence an opponent’s withdrawal from an election,
It is possible: McCleary v. Washington is an example. Ground zero was the 2012 ruling McCleary v. State, 173 Wn.2d 477, which then took 6 years of further scuffling to resolve. That opinion is full of useful legal tidbits, but the argument boils down to a constitutional obligation (art. IX) for the state to provide an education. If your state has no constitutional provision mandating that the state provide an education, you may be out of luck. I should point out, though, that the issue reduced to funding and not content / method: that the state used to use a &quot;local pots of gold&quot; model rather that a &quot;big pot of gold&quot; model, and even then came up short of the funds required to do what they were supposed to do. The &quot;argument&quot; was, simply, &quot;We can't can't agree on an affordable means of implementing this system&quot;, and subject matter or instructional methods were not debated. A lawsuit will be completely ineffective over a dispute about best methods. Since at least in Washington, school policy is set by an elected set of school officials, the only solution is to pick better individuals next time. Recall is not an option, except in the case of misfeasance or malfeasance – improper acts, not errors of judgment. But I would not totally discount the skills of a clever attorney to make the case that so-and-so is a violation of a constitutional duty, depending on what your constitution demands w.r.t. education. The constitutional provisions of Washington vs. California are significant. In Washington, It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex. and the Supreme court found that The State has not complied with its article IX, section 1 duty to make ample provision for the education of all children in Washington. Most of the education article is about the funding obligation, which is the legal point on which the Legislature was held in contempt. The California Constitution imposes a weaker duty on the legislature: A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement. The vast majority of the constitutional provisions in California are about electing and paying administrators, so there is little basis for arguing that a California school district has not encouraged such improvements. There is no &quot;quality&quot; requirement, just a desideratum to encourage improvement.
Information about a defendant’s character or past misdeeds are not generally admissible during a court proceeding. It can be brought in to rebut testimony. If the defendant takes the stand and asserts that they never discriminated against anyone due to their nation of origin, then evidence they they have done so becomes relevant.
An employee is an agent of the employer when working and owes a duty of loyalty to the employer. One of the obligations associated with a duty of loyalty is to refrain from receiving anything other than the employer authorized compensation for the work, rather than benefitting personally from work done on behalf of the employer. By appropriating additional benefit from the customer in a way that is unauthorized by the employer (the employer would be within its rights to sanction and authorize this conduct if desired), an employee who does not turn the profit in this transaction over to the employer has breached a fiduciary duty to the employer for which the employer would have a right to sue the employee for the amount by which the employee was unjustly enriched in the transaction. Would it actually play out this way in real life for these sums of money? Probably not. The stakes involved wouldn't justify the time and money of a lawsuit. But, breaching a fiduciary duty of loyalty to your employer in this context probably constitutes good cause to terminate the employment of the employee without paying severance that would otherwise be payable under Canadian employment law (in theory anyway, I've never seen a reported court case on point).
To what degree are such emails admissible in court as evidence, and what weight do they carry? Your own statement, when offered by you as evidence, is hearsay, unless it comes within an exception to that rule. Recorded recollection might be one of the better exceptions. There is also a chance that you could get it in as a business record of the company if you were using a company email account and the company stores all of its email communications. The documents also sometimes come in to provide fair context for a conversation with a party-opponent's statements that are admissible. It appears that Canada does not follow the modern British rule (which repealed the hearsay rule in civil cases in 1995), which if it were available, would come in without any difficulty at all. But, Canada does have what it calls a "principled exception" (which is somewhat broader than the parallel U.S. residual hearsay exception) that is generally available if the document can be shown to be reliable and there is an unavailable witness, or if there proponent of the document can show that it is reliable and necessary for other reasons. Even if the document itself is not admissible since it is hearsay, you could still testify as to what the boss said from your own recollection, and then have your lawyer ask you why you are sure that this is what was said. You would answer that you contemporaneously wrote a confirming letter to the boss spelling out what was said and you reviewed it to refresh your recollection before testifying at the hearing or trial. These kinds of confirming letters are used quite frequently in business and employment litigation. And, in my experience, these statements tend to be surprisingly effective and persuasive, because, while they do not foreclose the possibility that the person writing it was lying or inaccurate in the confirming email account, it does rule out the possibility that you forgot exactly what was said, and you provided the boss with an opportunity to dispute you which the boss didn't feel an obligation to correct. If one party has a coherent account in confirming emails of what was said, and the other party is trying to remember what happened a year or two earlier without notes from the witness stand, the person with the coherent, documented account is almost always going to come across as more credible unless the other side can show that your confirming emails are not infrequently gross misrepresentations of what really occurred. (I've also dealt with witnesses like that now and then.)
In general, you do not have civil recourse against the government for (lawful) legal process that you are the victim of. "Counterclaim" would only be applicable when A sues B, and B makes a counterclaim against A – the police don't sue you, they arrest you, and the prosecutor prosecutes you (or decides not to). If the police beat you up, you could sue them for violating your rights, under what is known as Section 1983. Given the scenario you describe, this comes closest to involving false arrest, meaning that there was no probable cause for arrest. Otherwise, the police have immunity for their actions. But if there is a legal arrest warrant, there is probable cause (existence of probable cause is the standard for issuing an arrest warrant), so no claim against the police will succeed. I am leaving out the anomalous concept of an unlawful arrest warrant, where a judge issued an arrest warrant but there is in fact no probable cause. Such a case would be covered by Section 1983, where either the judge or the swearing officer (or both) violated your rights.
It's sort of a toss-up. EEOC says that &quot;Questions about an applicant's religious affiliation or beliefs (unless the religion is a bona fide occupational qualification (BFOQ)), are generally viewed as non job-related and problematic under federal law&quot;. They also state that (excluding positions with religious exemptions, like hiring a Catholic priest) &quot;Other employers should avoid questions about an applicant's religious affiliation, such as place of worship, days of worship, and religious holidays and should not ask for references from religious leaders, e.g., minister, rabbi, priest, imam, or pastor&quot;. This reflects the standards by which they will make a finding of forbidden religious discrimination. The actual statutory law, 42 USC 2000e-2 does not prohibit asking questions about religion, instead it says (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 29 CFR Part 38 Subpart A does not specifically prohibit asking questions. Although many labor-law web sites and HR advice firms state that asking questions is illegal, DoL and EEOC do not specifically declare categorical illegality. The fact of asking some question might constitute partial evidence for a finding of religious discrimination. So no court has held that it is flatly illegal for an employer to ask a question about religion. The case of EEOC v. Abercrombie &amp; Fitch, which did find discrimination, gives you the required elements for a finding of religious discrimination. There is simply no &quot;don't ask&quot; cause of action. Asking might be evidence to support a claim of disparate treatment based on religion. The rule is: &quot;An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions&quot;. I have found no cases where EEOC found illegal discrimination based exclusively on the fact of asking questions about religion.