My Employee Got Arrested-Now What?

It’s a question more employers find themselves asking: “What should I do if one of my employees gets arrested?”

Acting on instinct can lead employers in the wrong direction when it comes to arrested employees. Employers need to consult legal counsel and consider all available options before making any decision on the worker’s job status. Also, it’s important that employers be aware of their employees’ rights and act in accordance with those rights. Making the wrong decision may result in a costly lawsuit.

The following criteria should be considered before suspending or discharging an employee based merely upon an arrest:

The policy or rule should not be “automatic” and any decision to take adverse action should be made on a case-by-case basis. Blanket suspension or discharge rules may be found unnecessary and the correlation between the employer’s business and the arrest may be too remote to justify the consequences of automatic suspension or discharge.

Confirm the accuracy of the report of arrest before taking disciplinary action.  Remember – there is a big difference between a conviction for a crime versus an arrest/charge for a crime

An arrest is nothing more than an accusation – nothing has been proven, so an employer should always be leery about firing an employee for an arrest.

The same is true of an indictment or other formal charge.

Employers must be aware that some states have laws that specifically say that employers may not suspend, discharge or take other disciplinary action based on the fact that the employee was merely arrested.

Suspension or termination decisions should be made with the duties of the employee in mind.  The company must determine if the offense will have an impact on the job the employee performs.  To illustrate some examples, an employee that works in the office in an accounting role who is arrested for a DUI may not need to be terminated, as the offense is in no way related to the duties of the job.  However, a bus driver who is arrested on the same offense may warrant termination, as the safety of the passengers needs to be taken into consideration.  Each situation should be evaluated on a case-by-case basis taking into account the facts and circumstances of the particular employee and the reason for the arrest.

While terminating an employee for off-duty conduct may generally fit within the at-will doctrine, this is a cautionary reminder that an employer should consider whether there are any statutory or other exceptions under the law that may weigh against a termination decision.

Consider Other Bases for Action

The circumstances surrounding an employee’s arrest or conviction may sometimes provide a basis for taking disciplinary action even if the conduct was unrelated to work, not egregious and had no relationship to the employee’s job. For example, an assembly line worker who is arrested for non-payment of alimony may not be able to post bond and so may be gone from work for several days with an unexcused absence. In that case, the employer may take disciplinary action on the basis of the excused absences. However, the employer must ensure that all employees with unexcused absences are treated uniformly; the fact that incarceration was the reason for the employee’s absence must not be a factor in the discipline.

Document Everything:  As with all personnel matters, documentation is critical. The employee file should contain all relevant notes, documents, evidence, interviews and decision-making processes pertaining to the decision to impose discipline on the employee for the alleged criminal activity.

Even the most experienced HR professionals can be tripped up by the rules, so it’s advisable to consult with an experienced employment law attorney to ensure you make the right decision.