Our family has a fantasy football league and my 13 year old son Benjamin drafted Adrian Peterson in the pre-season draft. Earlier this week when the Minnesota Vikings activated Peterson to play this weekend, Benjamin was faced with a decision many employers have to make; whether to allow an employee who has been charged, but not convicted, of a criminal offense will be allowed to perform his craft for the employer.
The options employers most frequently chose from when faced with an employee with a pending criminal charge are allowing the employee to continue to work; suspending the employee with or without pay pending resolution of the criminal proceeding or ending the employment relationship altogether.
Current EEOC guidance discourages employers from making employment-related decisions based on arrests not resulting in convictions. Similarly, our criminal justice system affords the accused the presumption of innocence until proven guilty (something not binding on employment decisions of the employer).
Because the law does not dictate how these decisions are made, they are often driven by economic, business and public relations considerations rather than legal considerations. Is the employee a solid or marginal performer? Does the employee have a control over significant revenue or key customers? Is the offense charged particularly serious or heinous? Has the crime generated media coverage? Peterson was activated to play this weekend because he is a talented running back that the Viking need to play. He was deactivated following the public outcry and sponsors threating or actually pulling their sponsorships of the team. Only when the financial impact of Peterson’s participation outweighed the benefit he could bring on the field did the Vikings reverse course and deactivate the star.
This week, the Vikings made the choice for Benjamin’s fantasy team. The team deactivated the running back and my son had no choice but to bench him this week. I’d like to have watched to see whether Benjamin would have played Peterson this week if the Viking’s hadn’t deactivated him.
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