What if the allegation involves potential criminal activity away from work?

It is essential that supervisors and managers contact the County Counsel’s Office as soon as they become aware of an allegation that involves potential criminal action outside the workplace. If you are unsure whether the allegation involves potential criminal action, contact the County Counsel’s Office for guidance.

Occasionally, a manager or supervisor learns that one of his/her employees has been arrested. Sometimes this information comes directly from the arresting agency, sometimes it is reported by a coworker or member of the public, and sometimes the employee reports the arrest. When you learn about an arrest, you should immediately contact County Counsel and Employee & Labor Relations for assistance in discussing whether and how to conduct an investigation.

If there is an arrest, you can, and should, investigate the underlying conduct that led to the arrest to determine whether disciplinary action based on the underlying conduct is warranted. This must be distinguished from using the fact of the arrest itself, or the police record of the arrest, to take an employment action, which generally is not permissible. California Labor Code section 432.7(a) provides that, an employer may not use “any record of arrest or detention that did not result in conviction” as a factor in determining any condition of employment, including the decision to hire or terminate. Thus, an investigation of the facts themselves (as opposed to the arrest itself) is necessary to determine if any action is warranted. Contact County Counsel and Employee & Labor Relations for guidance. The inquiry will focus on the nature of the conduct to determine whether it has any connection to the employee’s job duties.

Convictions

The County’s policy on Reporting Convictions is as follows:

Any County employee who is convicted of a felony or a misdemeanor, or placed on parole or probation subsequent to employment must report such conviction, parole or probation to Employee & Labor Relations within 72 hours of the conviction, or of being placed on parole or probation. A conviction will not necessarily result in disciplinary action. Each conviction will be reviewed/investigated to determine if disciplinary action is warranted. Failure to report a conviction within 72 hours of the conviction will result in disciplinary action, up to and including dismissal, absent an explanation of the failure to report which is satisfactory to the appointing authority.

The District Attorney’s Office will notify Employee & Labor Relations of any San Mateo County convictions of County employees.