Tax protestor loses his job due to antics, now wants it back

[LightinDarkness]

I am in an unusual situation. I am involved in alternative conflict resolution. I have a case where an employee was convicted (felonies) for tax protestor related antics. He served jail time (although not much), and is now released. His employer fired him shortly after the conviction. I can't give much details to protect the privacy of all involved, but I want opinions based on the generalized info I can disclose.

I have the authority to reinstate this guy, but I feel conflicted. Legally this is a toss up - in other words the contracts governing his employment there are as many arguments for keeping him fired as for reinstating him. The parties involved have left it up to me.

In his favor:
- Appeared remorseful. States he fell for stupid people and stupid theories and regrets it.
- Does not work in a position where a conviction of this type is strictly relevant in terms of his ethical capacity to perform the job (ie this is not banking, finance, or anything similar to it).
- Does not work in a position where the level of reasoning failure that got him into tax protestor antics to begin with would negatively impact job performance (this is not a job that requires lots of reasoning skills).
- Hes served his time, nothing happened during jail, has otherwise been clear of legal trouble.

Against him:
- These are multiple felony counts, and the level of fraud is pretty spectacular if also pretty stupid in terms of the tax protestor related antics.
- I find credibility in the argument that crime at a certain level demonstrates a willingness to engage in dishonest behavior, which in any job context is not something an employer should have to deal with.

What would you do?

[ArthurWankspittle]

- I find credibility in the argument that crime at a certain level demonstrates a willingness to engage in dishonest behavior, which in any job context is not something an employer should have to deal with.

This is what concerns me. Replace dishonest with wacky or stupid and would he still be employed? Is there a chance he will be willing to use company time and equipment to communicate with aliens (or whatever) in a years time? Does he possibly have any mental health issues?

[wserra]

In his favor:
- Appeared remorseful. States he fell for stupid people and stupid theories and regrets it.

This appears more an argument properly addressed to an employer than an arbitrator. It's an apology, not a justification. In other words, depending on the value of the person to the employer, perhaps the latter will forgive and forget. But that's the employer's decision.

- Does not work in a position where a conviction of this type is strictly relevant in terms of his ethical capacity to perform the job (ie this is not banking, finance, or anything similar to it).

Fair enough. That's a factor.

- Does not work in a position where the level of reasoning failure that got him into tax protestor antics to begin with would negatively impact job performance (this is not a job that requires lots of reasoning skills).

Every job requires some reasoning skills. Otherwise the work could be done by a machine. The employer is in the best position to decide whether the person could do the job appropriately.

- Hes served his time, nothing happened during jail, has otherwise been clear of legal trouble.

Up to a point, so did Sammy Bull.

Against him:
- These are multiple felony counts, and the level of fraud is pretty spectacular if also pretty stupid in terms of the tax protestor related antics.

Pretty important, right?

- I find credibility in the argument that crime at a certain level demonstrates a willingness to engage in dishonest behavior, which in any job context is not something an employer should have to deal with.

Pretty important, right?

What would you do?

Despite what it may appear from my comments, I'd have to see the contracts to know the parameters. Unless they make it clear that someone in his position should be reinstated, though, I'd leave it to the employer. S/He's the innocent party here.

[Judge Roy Bean]

Too little to go on, but in any employment case you have to consider company policy and past practices and what precedent may be set by action either way.

One of the worst things that can happen is to have a varying "message" as to the reasons given by the company - whatever the rationale is today should stand up to the test of time.

As to your concern with "multiple" counts - without knowing more I would only suggest that such cases lend themselves to those kinds of laundry-lists, in part because the perpetrators often engage in the scheme for several years before they're confronted and each year of errant behavior creates multiple counts.

The other issue surrounding "reasoning" in regard to his ability to perform on the job is more complicated. I would argue that tax-protester "antics" are not engaged in with reasoning, rather, a TP perceives some sinister threat and rationalizes the cloaking of his greed in a veil of "fighting the good fight" or patriotism. In such cases the participant adheres to the promoter's belief and deliberately avoids research and reasoning that involves legitimate case law.

I would also consider the issue of restitution. I'm assuming there were back-taxes and financial penalties involved - have they been paid?

Finally, I would offer that if he was not a promoter of such things but simply a participant, one time through the criminal cycle should be enough to discourage him from wanting to do it again - particularly since he'll be under almost continuous scrutiny.

[Kestrel]

Is he remorseful for what he did, or simply remorseful that he got caught?

I don't know if this information is available to you, but I'd think it would be a condition of his probation that he not continue in the behavior that got him in trouble in the first place. Specifically, a condition of his release should be that he correctly file his past and current tax returns, that he be paying his current taxes as they come due, that he either pay off or enter into a payment plan for his past due taxes, and if in such a plan that he be paying faithfully. Likely he has other fines and penalties owed which he should be paying on faithfully. That might indicate that he is truly remorseful for what he did.

Is he angry at being fired and arguing for his rights? Or is he regretful and begging for a second chance? An angry reinstated employee is likely to find ways to cause expensive "accidents."

I want to know whether he has access to valuable company assets which can be stolen and converted. I know you said he is not in banking or finance. But would he work in a position where he might steal company merchandise, i.e. a warehouse or delivery job? Would he be a hospital orderly who might have access to patient medications he can steal and sell on the street? Would he be an auto mechanic in a position to make expensive tools and shop supplies disappear? Would he have access to the company computers and therefore possibly have the ability to break into the company database or give access to a friend who can?

In this situation I would definitely want to see his credit report to find out how much pressure he is under that could lead to him helping himself to company assets. In his case a bankruptcy filing would be a positive step.

Does he have a strong supportive family helping him get on his feet again? Or did they throw him out and turn their backs on him? He's more likely to be untrustworthy if he doesn't have a good support system.

Have you heard of the Fraud Triangle? Specifically it says that fraud has three elements: opportunity, pressure, and rationalization. This person has already proven that he is willing to rationalize his behavior. An unpaid tax debt or other debts that have not been discharged in a bankruptcy, coupled with a lack of family support, would provide the pressure.

Before considering him for reemployment you need to make sure that he does not have the opportunity to turn the company into his personal piggy bank.

[Gregg]

For me, I'd send him packing. And when I was the 800 lb gorilla in charge of my company I had a standing policy of whenever Joe Sov'run started trying to file 99 dependent W2s or start talking about suing us for withholding etc... to fire them and worry about lawyers later.
One thing I find especially annoying about tax deniers, sovereign citizens and like is the attitude that "I know better than you" when in fact, well, they don't. To me its not a far leap from "I know more about taxes than you" to "I know more about (insert your own business here) than you" and frankly, I'm not having it.

He's not sorry he did what he did, he's sorry that he's unemployed because of it. Actions have consequences, let his friends see how smart he was about that stuff, maybe one of them will quit before he too ends up saying "ya want fries with that?" at work a lot....

[LightinDarkness]

Thanks for the replies, you are giving me lots to think about. I wish I could answer some of the questions but then all you lawyers would be able to zero in on who it is, and I do have to respect their privacy. Here is what I can say given the responses:

My assessment of him personally is that he doesn't appear to have any mental health issues, and basically claims the whole "felony conviction thing" was enough to get him to see the light. Of course, as has been noted, people will say anything to get their job back. But I have been surprised. In my position I have to make a lot of credibility assessments and you would be surprised how often people try to get their job back but are totally flippant about the process and act like they have no remorse for their actions.

The controlling parties involved in this, including the Employer, have basically said "you figure it out, were good with whatever you decide." They are not going to comment on things like whether they consider his remorse to be legitimate. The contract language is written in such a way that I am comfortable in going either way on this - there is no clear guidance from the contract (contract says "dont get involved in criminal misconduct" but does not provide what the discipline for doing that is) and this has not happened enough with this employer to establish past practices. This is an industry where simply violating a policy is not in and of itself always enough to be fired, so the fact that its a policy violation doesn't really mean much.

The court ordered restitution, and the person has set up a payment schedule and is paying it as required.

He was a promoter of the TP antics in question, in fact he was characterized as being something of a ring leader.

He has filed corrected tax returns, which was a condition of the court.

Due to the way the case has found its way to me I can't get a handle on the credit report, but given the type of job he does I don't see how he could really steal anything. About the only thing he could do is try to steal company supplies, but were talking...types of supplies that it would be very hard to steal and have no one notice.

If this prompts any other thoughts, feel free to post them. I am planning to make a decision about this on Tuesday. I am currently leaning towards keeping him fired, the argument being that the type of crime here involved a level of intentional dishonesty and fraud that rises to an unacceptable level. The company cannot be reasonably expected to employ people who show a pattern of dishonest behavior at this level in any capacity. But that is just my current though.

[Arthur Rubin]

For me, I'd send him packing. And when I was the 800 lb gorilla in charge of my company I had a standing policy of whenever Joe Sov'run started trying to file 99 dependent W2s

I once filed a 99-dependent DE-2 DE-4 (California); the calculation suggested 20, but there was an error in the employer's withholding calculations so that exemptions over 9 only counted 1/10th of what they should be, so....

[Kestrel]

Due to the way the case has found its way to me I can't get a handle on the credit report, but given the type of job he does I don't see how he could really steal anything. About the only thing he could do is try to steal company supplies, but were talking...types of supplies that it would be very hard to steal and have no one notice.

There is one other factor to consider when assessing the potential for him to commit future frauds: collusion. One person may find it difficult to commit a fraud by himself, but if he has a partner the employer may find the theft or fraud very difficult to prevent, or even detect.

Does this man have relatives, compatriots or sympathizers at the job location who sided with him before he went to jail and still think he was treated unjustly? Doubtless during his previous employment he was promoting his tax fraud with his co-workers, talking about his court battle, and trying to win sympathy and converts to his cause. Would he be working with or near any of those people if he returned to work for this employer? Keep in mind that the wiliest of these sympathizers will maintain a low profile to protect their own jobs, but may be more than willing to help him get a little "justice" done.

When giving a man a fresh start, one of the keys is to separate him from his co-conspirators. Does the employer have an alternate office or location where, if reinstated, this man would have little or no contact with his former coworkers?

The last think I would want to do is throw him right back into the same group he worked with before going to jail. If the co-workers are not sympathizers, the employer could easily find himself walking across hot coals in dealing with people who resent him for being given a second chance that they feel was not afforded to them for lesser infractions.

[Kestrel]

whenever Joe Sov'run started trying to file 99 dependent W2s...

Do you mean W-4s?

[.]

For the employer, one possible downside of parting ways would be the cost of training his replacement.

Regardless of that, I would have fired the guy after the first hint of TP-type activity, never mind a criminal conviction where the guy was a promoter/ring-leader. After a very short conversation about why he claims he doesn't owe income taxes.

He's done the equivalent of jumping up in an all-employee meeting where everyone else is seated quietly and waving his arms while yelling "Look at me! I'm ignorant enough to do really, incredibly dumb stuff. I'm trouble waiting to happen."

When someone alerts you to the fact that they're probably the dullest knife in the drawer, take the hint, admit the hiring mistake, summarily dispense with the problem and ignore any remonstrations.

There are enough problems running any business without having to deal with or wonder about what some clown might be doing who isn't bright enough to 1) ignore TP nonsense, and 2) avoid felony convictions resulting from the failure to avoid the TP nonsense. Whatever combination of stupidity, ignorance, intentional illegal acts or dumb delusions it was, none of it is excusable.

[ArthurWankspittle]

If this prompts any other thoughts, feel free to post them. I am planning to make a decision about this on Tuesday. I am currently leaning towards keeping him fired, the argument being that the type of crime here involved a level of intentional dishonesty and fraud that rises to an unacceptable level. The company cannot be reasonably expected to employ people who show a pattern of dishonest behavior at this level in any capacity. But that is just my current though.

This provokes a further thought: how does this reflect on the company and what future issues will it cause? Hey, you know Acme Plutonium still employ that guy who has multiple fraud convictions and went to jail? Sacked and disciplined employees will be saying but you still employ Jon Doe after he went to jail and I only was just over the limit/was just looking at pictures on the internet/fill in the blank.

[Gregg]

whenever Joe Sov'run started trying to file 99 dependent W2s...

Do you mean W-4s?

yes....

[.]

This provokes a further thought: how does this reflect on the company and what future issues will it cause? Hey, you know Acme Plutonium still employ that guy who has multiple fraud convictions and went to jail?

There are hundreds of potentially bad scenarios. Which is why you summarily dump troublemakers and those with a foggy comprehension of what is legal or ethical.

The unintended consequences of being a nice, understanding and naive guy -- aw, give 'em another chance -- are legion and unknown.

Many years ago, in the futures management business, I once asked one of my salesman who was filling his call sheets with the same 30 to 50 names, week after week, why he thought he was fooling me.

He turned bright red and stammered something about how he would never try to fool anyone. That alone was a tell, someone who hasn't done something generally denies it outright and directly, as in "I didn't do that" as opposed to "I would never do that." Something to do with their rationalized view of themselves as being a "good" person who wouldn't do whatever the nasty thing was, even though they in fact did it.

In any case, not a direct, outright lie but a hedge. But, psychology notwithstanding, I knew exactly what he had been doing. For a month. And the evidence was incontrovertible and in his own handwriting on daily written logs. (This was 1980 and the new 60K computer (with 1% of the power of any current lap-top) I had just bought wasn't running yet. The guts of it were in a box that was about 2'x3'x4' on the floor. It wouldn't boot if the room was too cold -- this is Minneapolis in the winter and the office building turned down the heat on week-ends.)

Result: You're fired because I'm better off giving my very expensive, high quality leads (I spent 20-30K to haul a few guys to any given monetary/gold-bug investment conference in NY or LA or Dallas or New Orleans or London or Hong Kong to generate 200-300 quality leads) to someone who can actually be bothered to do his job instead of trying to fake it. And the rest of the sales force took notice that slacking wouldn't be tolerated, and that their reports were being watched.

In the retail computer business in the '90s, I discovered that some of my technicians were doing a little side business based on diverting tech calls from my customers. Same, lame denial: "Oh, I would never do that." Fired. Techs are a dime a dozen.

A friend of mine makes a very good living selling collectibles on the internet, mostly on eBay. She often mused about what she should do with bidders/buyers who ask truly stupid and/or ignorant questions. Or want to pay a week or two late. Or want to make up their own terms.

My advice was always the same. Put 'em all on your blocked bidder list. Anyone with one excuse or stupid question or ridiculous demand has 10 more where that came from. They're waving their hands at you, shouting "I'm trouble." Take them at their word. After too many bad experiences, she now completely agrees with me.

Moral of the story: Cut morons, thieves, slackers, nut-balls and anyone else with little acquaintance with legal or ethical reality off at the knees and do it as soon as is possible and never, ever relent. As an employer, stay away from them. Far, far away.

[Cathulhu]

The fact he was a ringleader is why I wouldn't have him back. He didn't just get himself into this; he actively attempted to recruit others. Hang him out to dry.

[LightinDarkness]

Thanks again for the replies. I should add that this is a unionized environment, so there are lots of people working who have engaged in what you might consider to be damaging behaviors (damaging in terms of the actions effecting the employers reputation - the employers equipment - their legal liability insurance, etc.). Although I am not aware of any employees of this company who were reinstated due to felonies like this, I have seen cases where people have been put back for what I would consider to be exceptionally egregious conduct. If we were ranking crimes of employees on a scale of 1-10, with 10 being the worst, I've seen up to a 8 get put back by other people.

Interestingly enough the whole "this damages our company reputation" angle has come up, but I am not satisfied its a realistic argument against reinstating the employee. For whatever reason the federal government didn't tend to make a big deal out of this, and I can find only extremely limited media coverage about it - and what coverage there is does not mention the employer's name anywhere.

[Kestrel]

So you have an 800 pound gorilla in the room, with a reputation of making the employer reinstate known bad apples who have caused specific harm. From the sounds of it they have established quite a precedent making the employer suck up and continue to employ problem children with an escalating degree of egregious behavior. That surely is not good for the workplace environment.

This is not an isolated case about one particular ex-felon. This is a power play establishing once and for all that the workplace personnel decisions are controlled by the union, not by the employer. Get a serious felon reinstated, and we can keep the rest of the union troublemakers from getting canned.

The union wants to push the line of acceptance a little bit further. Is there any degree of misbehavior which would warrant termination? At this point I would be asking where you draw the line.

[Lambkin]

The next time this employee transgresses (which will surprise no-one) you may not have the option to terminate him, if his future offenses don't involve criminal convictions.

Keeping the employee on the payroll seems to offer minimal benefit to the business: you didn't mention whether the business actually needs this particular employee (compared to giving a chance to an honest person).

[JamesVincent]

To me personally there is a world of difference between someone who screwed up and someone who is dishonest. There are a lot of things you can do to screw up, lord knows I've done a few of them, and not be dishonest. There is no way you can honestly say you didn't try to cheat the Government if you got caught and convicted for tax evasion, or TP antics as you put it. Any type of crime like embezzlement, tax evasion, identity theft or so on is a huge red flag to me personally. I would rather hire someone, and probably would, who had been convicted of a DWI then any of them.

As far as the Union issue I agree with Kestrel. Having worked in a Union (Longshoremen) environment years ago I saw on a consistent basis people who should not have had their job being left alone. Couple of examples, we had a shop foreman who showed up everyday drunk or stoned and worked in the carpentry shop building crates for overseas shipments. He came into work one day, started building the floor of a crate and blew 6 16p nails through his foot since he was too stoned to see. He was out of work, paid, for awhile and nothing happened to him. We had a forklift driver who was constantly drunk and wrecked crates and boxes almost everyday. He was not fired until he went flying through the yard and lost control of the lift and slammed into a crate of bulletproof glass hard enough to shatter 4 pieces of it. Even after months of similar incidents leading up to that last one. If that had been a person they would have dead a few times over.

My advice would be to say no, the company does not need someone like that around.

[Duke2Earl]

For what very little it is worth, I agree with those who would not rehire this person. It has nothing to do with having been convicted of a crime, but what that crime was. Everyone smart enough to breathe knows that the income tax law is out there. It takes a special kind of someone to believe that the rules that apply to everyone else just don't apply to them. I do believe it is possible, if somewhat unusual for people to change, but I would need more than just simple regret to convince me that his basic personality has changed. Because that the problem, to me, is if his basic personality is that the rules that apply to everyone else don't apply to him and can be circumvented, some way or another he is not the kind of person you want working at your company. People can and do make mistakes, but basic personalities seldom change.