I’m gonna throw a little employment law at this Matt Patricia – Detroit Lions Sexual Assault saga

Governor Wolf Attends Philadelphia Eagles Super Bowl LII Victory Parade (39462266524)

By Governor Tom Wolf from Harrisburg, PA [CC BY 2.0], via Wikimedia Commons

On February 5, 2018, the Detroit Lions named former New England Patriots Defensive Coordinator Matt Patricia as the team’s new Head Coach.

Maybe, Lions ownership missed Super Bowl LII and the 41 points that the Philadelphia Eagles dropped on Mr. Patricia’s garbage Patriots defense.

Oh, sorry.

The Philadelphia Eagles Super Bowl LII victory over the New England Patriots, which gave the Eagles one more Super Bowl win (1) than the Dallas Cowboys have total playoff wins in the last 20 years (0), is not the point of this post.

The point is that, on Wednesday, Robert Snell of the Detroit News reported (here) that Mr. Patricia was indicted for aggravated sexual assault in 1996, something missed in the Lions background check.

And the real question is…

What, if anything, can the Lions legally do about it?

So, let me preface this by saying that:

  1. I hate the Dallas Cowboys
  2. I am NOT a Michigan lawyer.
  3. But I did stay at a Holiday Inn Express last night.

Notwithstanding, I did a bit of research today. Under Michigan law, an employer cannot ask an applicant about or maintain records concerning any misdemeanor arrests that did not result in a conviction. The law further states that “[t]his section does not apply to information relative to a felony charge before conviction or dismissal.” According to this Boston Globe article, “aggravated sexual assault [is] a felony charge that carries a maximum sentence of life imprisonment in [Texas],” which is where Mr. Patricia was indicted. So, had the Lions known about it, they could have asked.

Now, Mr. Patricia was not convicted and maintains his innocence. Plus, the Lions have since issued a statement in which they offered their support for Mr. Patricia.

In my brief research, I didn’t find anything under Michigan law that would prevent the Lions from refusing to hire or terminating Mr. Patricia based on the felony indictment (as opposed to the conviction). If I’m wrong about this, I rely on my great Michigan readers to correct me.

But, what if the Philadelphia Eagles had hired Mr. Patricia?

Yeah, right.

However, I do know that if the Philadelphia Eagles had hired Mr. Patricia — maybe to learn something about defense from current Defensive Coordinator Jim Schwartz — there would be trouble brewing if the Eagles tried to reverse course.

That’s because, in Pennsylvania, we have a law called the Criminal History Record Information Act (CHRIA). Under the CHRIA, an employer cannot use arrest records to make employment decisions. Instead, only “[f]elony and misdemeanor convictions may be considered by the employer [and] only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.”

(And in Philadelphia, we have “ban the box.” The Eagles wouldn’t be able to ask about any criminal history until after making a conditional offer of employment.)

Here, since Mr. Patricia was not convicted of aggravated sexual assault and continues to claim he didn’t do it, the Eagles would need some other reason to end his employment.

Like, maybe watching a replay of Super Bowl LII.

See what I did there?

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