A senior Nike executive, Larry Miller, has recently revealed that he killed a teenager when he was 16. Miller is the head of the Michael Jordan brand at Nike. Remarkably, Nike has expressed support for Miller, commenting that Miller’s life was “an incredible story of second chances”.
Nike’s support of Miller, especially as publicly as this, is far from the norm. It begs the question, if Miller were an employee in New Zealand, would he be treated the same?
Miller’s successful career only followed what was a troubled start to his life. Miller revealed that he was arrested multiple times between the ages of 13 and 30.
After his friend was murdered by a rival gang when Miller was a teenager, his group of friends got drunk and went in search of retribution. Miller revealed that he shot the first person they came across – 18-year-old Edward White.
Shortly after the murder, Miller was arrested by police, charged for the crime and sentenced to jail.
It was while in jail that Miller began studying towards his accounting degree. When he was released from prison after he turned 30, he began his career relying on the education he obtained while in prison.
Miller discovered, however, his crime would hold back his career. He said he disclosed his past when he applied for a job at accounting firm Arthur Anderson but its offer of employment.
After that, Miller never revealed his past again to new employers, until now. He claims he never lied, instead relying on technicalities to avoid revealing his past.
Nike have expressed their support for Miller following his public statements, but if the company was based in New Zealand, could it have dismissed him for keeping his past secret?
The issue comes up periodically in the employment jurisdiction, albeit in much less public circumstances.
In 2014 the Employment Relations Authority heard a case where an employee explicitly answered “no” when asked if he had ever been convicted of a criminal offence.
In reality, the employee was convicted of “serious offences” in 1990 and 1992 for which he served two separate terms of imprisonment. Later in 2002 he was convicted of a drink-driving and disqualified for six months.
It was not until six years of employment that his employer discovered the earlier convictions after they were disclosed in a letter from police. He was dismissed shortly after.
The authority found the employer did not have a reasonable basis to dismiss the employee. When the employee’s convictions were uncovered he had been employed for six years of satisfactory, “even good”, employment.
The convictions were 15 and 17 years old when the employee had made the applications. Additionally, the employer had not made a criminal record check, or made the retention of employment conditional on subsequently discovered false information.
The authority found that the convictions were not “intrinsically related to [the employee’s] work” and were not of a kind that made it less likely he could be trusted to undertake his duties.
The authority also considered whether the employee’s actions could have undermined the necessary relationship of trust and confidence. However, it held that “there was no suggestion of his having been dishonest in any way other than concealing his previous convictions”.
It also held the argument that trust and confidence was destroyed was undermined by the fact it had allowed the employee to remain in their role for a full week after the convictions were discovered.
The authority held that the dismissal was unjustified.
The employee in this case clearly suffered from the employer’s actions. His counsellor gave evidence that the employee “had gone to great lengths to understand the cause behind his criminal conviction 20 years ago” and believed that healthy strategies the employee had put in place was the reason for why there had been no offending for 20 years.
The counsellor said they had become “increasingly concerned” about the state of the employee’s mental health following the sudden loss of his job. The employee gave evidence that “for the second time in my life I was about to lose everything over the same matter”.
He was awarded $12,000 compensation for hurt and humiliation.
Going back to Nike’s position on the issue, it is clear Miller deeply regretted his actions.
He described that throughout his career he had recurring nightmares and migraines which resulted in visits to the emergency room. He said his secret was “eating him up inside”.
Miller eventually decided to open up about his past to his closest business associates, including Michael Jordan. He said he had had positive responses from his colleagues and this was ultimately a “freeing exercise”.
Nike have said it is “proud of Larry Miller and the hope and inspiration his story can offer” and that it supports policies which help former prisoners “open new doors of opportunity and move forward with their lives”. Nike’s commitment to allowing people to move forward positively with their lives is commendable.
That said, many employers may rightly feel uncomfortable about employing a person whose criminal convictions call into question their ability to perform their role.
Case law does not rule out the ability to dismiss when convictions are discovered after employment has begun. However, employers must properly consider whether historic criminal conduct can reasonably impair trust and confidence in the employee. A sober assessment of the risks is required.
Cullen –The Employment Law Firm is now a part of Mahony Horner Lawyers. David Burton the author of this article is a Principal of Mahony Horner Lawyers. He can be contacted at firstname.lastname@example.org