Q: We have a salesperson who drives a company vehicle for work. He was given a DUI, but hasn’t been convicted yet. He’s also been issued a temporary driver’s license to drive and has to drive as part of his employment. What are our options for terminating his employment prior to conviction? Or, must we wait until his license is suspended?
A: Based on the information provided, Labor Code section 432.7 prohibits employers from using information concerning an arrest or detention that did not result in a conviction as a factor in determining any condition of employment. In addition, you mentioned that the employee still has a valid driver’s license and is able to perform the essential functions of his position. Termination based on these factors is not recommended at this time and may be unlawful.
Here are some clarifying questions and things to consider in this situation:
- What is your written policy on employees driving company vehicles?
- Does it address using your company vehicles outside of work?
- Was your employee driving a company vehicle when he was cited for a DUI?
- Is this prohibited in your policy?
- Did he sign the policy?
- Did he violate your current policy?
- Is his position part of a state or federal contract prohibiting this type of citation or conviction (should he be convicted)?
Best practice is to review your drug and alcohol policies to ensure they are airtight based on the questions above.