- Posted by Maria Peterson
- On February 11, 2016
As an employer, you hope that you make good hiring decisions and have employees that are good workers and do the right thing while at work. You have policies on harassment, discrimination, drug and alcohol use as well as many others that you require your employees to follow. You also establish consequences such as disciplinary actions or even termination if the company’s policies are not followed. You may even hope that those that you hire do the right thing when not at work. This is a gray area and there are even laws that prohibit employers from restricting what an employee’s off the clock activities are.
And then it happens… one of your employees does not show up one day and you find out that he or she has been arrested. What can an employer do and what should an employer not do in this case?
A good first step is to ensure that the company has a policy and procedure in place to deal with such a situation. But keep in mind; a policy that automatically suspends or terminates all employees who have been arrested can be an issue under EEOC law. A terminated employee could claim wrongful discharge or discrimination. Therefore, each arrest (and let’s hope your company does not find that it is in this situation often), should be taken on a case-by-case basis while ensuring that similar situations are handled consistently. A policy may state that an employee who has been arrested must report the arrest to the employer within a particular period of time, such as within 3 days of the arrest. In some states, an employee may be placed on suspension and the company’s policy should be clear as to how the suspension will be handled. For example, is the time on suspension paid or unpaid, and what will occur if the employee is not convicted? Will the employee be paid for the time on suspension if he or she is found not guilty of the crime? These are all issues an employer should consider when creating a policy.
Another thing to consider is whether the employer has other policies that may come into play when an employee is arrested. If the company has attendance policies, these may help with some decisions on appropriate actions when an employee is arrested. As an example, if there is a policy in place that states if an employee is a no call/no show for three consecutive days, he or she is assumed to have voluntarily resigned and the employee may be terminated if unable to call while detained. Additionally, if the employee takes time off while in jail or to attend appointments related to the arrest, the employer may decide to apply the absences towards excessive absence consequences. The company may also allow the employee to take the needed time off under a policy for personal leave of absence, should the company allow such leave.
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. As mentioned, 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.
Ensure that you protect the employee’s privacy rights. It is important the employer only provide information on an employee arrest only to those with a need to know. Discussing this private information throughout the company could lead to the employee who has been arrested filing a defamation claim.