What to Do When an Employee is Arrested

Jailed EmployeeThe day starts out hectic.  Phones are ringing off the hook, and the receptionist is nowhere to be found.  He didn’t call to say he wasn’t coming to work, so where is he?  On an impulse, you log onto the Kitsap County Sheriff’s site,  and sure enough, he’s in jail!

Now what?

The latest figures from the U.S. Census show that over 11 million people were arrested in a year. 

These staggering figures demonstrate the possibility that you, as an employer, may very well find yourself with an incarcerated employee one day!

Don’t take any actions you might regret:

The first step for you as an employer is to not panic and take an action you might regret.  Remember that the Equal Employment Opportunity Commission (EEOC) has statistics that prove that minorities are arrested in far greater numbers than non-minorities.  And all of us believe in the adage that everyone is “innocent until proven guilty.”

A rush to judgment may land you in legal hot water with a claim of discrimination based on disparate impact.

Gather all the facts before making a decision:

Your first step is to do some fact gathering.  Determine as much as you can about the reason for the arrest, potential charges, circumstances involved, and what the immediate future looks like for your employee.

If the arrest is for drunk driving for your receptionist, the impact on your organization may not be significant.  On the other hand, if your sales manager has been arrested on suspicion that she’s murdered her husband, she is potentially facing a long legal process with bad PR that could harm your company.

Consider all of your options when an employee is arrested:

Consider all of your options, not just termination.

For instance, can you grant the employee a leave of absence while they deal with their legal issues?  Depending on the outcome, you could return them to their position, or terminate them at that time if it’s appropriate.

Another option is to move an employee to a less public position pending the outcome of the trial, when a firmer decision will be made.

Company policies on arrests & convictions:

Some companies develop specific policies about how they’ll handle employee arrests and convictions.  But for many of us, this isn’t necessary, as it’s a rare occurrence.

You may, instead, want to have a clear policy regarding employee absences.  If an employee does not call in advance to report an absence, they could be terminated for cause, as a no-show no-call.  Your absentee policy could also cover termination for unapproved absences, such as incarceration.

If you do decide to implement an employment policy for arrests and convictions, a good starting place is to refer to the EEOC’s guidelines on pre-employment inquiries regarding arrests and convictions.

They encourage employers to allow the employee to explain the circumstances surrounding the arrest, and they give the employer the ability to use judgment in deciding if the story makes sense.  If the employer believes that a crime was committed, the next step is to consider how the offense relates to the job and the impact on the business.

Taking the time to thoughtfully go through this process can reduce the possibility of designing a blanket policy that creates disparate impact and makes your business vulnerable to claims of discrimination.

Maintain your employee’s privacy:

Obviously, when an employee is arrested it can cause disruption for everyone else in the workplace.  Remember that your employee maintains a right to privacy.

Keep the information about the circumstances surrounding the arrest confidential to only those who have a need to know about it.  You don’t want to be on the other side of a defamation lawsuit!  Share only information that is already available to the general public.

On the other hand, be sensitive to the concerns and needs of your workforce.  Not everyone will be comfortable working alongside an accused rapist awaiting trial.

The wrap-up:

As someone who ponders HR laws, when there’s a sensational arrest, I always wonder what the employer will do.

Imagine if you were Casey Anthony’s employer.  Would you have kept her working for you while she was under suspicion?  Would you have held her job for her while she sat in jail awaiting trial?  Probably none of us would.  But, she was found not guilty.  Would you have offered her the job back after the trial was over? Probably not, right?

Although we all would likely answer these questions the same way, imagine now that Casey Anthony was a black man.  Suddenly, those decisions become tinged with a possibility of discrimination.  This is why we all must step very carefully when dealing with an incarcerated employee.

And there’s one more very important step to always take:  do nothing until you’ve consulted your own attorney!

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