A version of this article was originally published in the March 2016 issue of The HR Specialist. It is reprinted here with permission.
It’s a question more employers find themselves asking: “What should I do if one of my employees gets arrested?”
With a record number of Americans now in jail — more than 2.2 million in federal or state prisons — and crackdowns underway nationwide against drugs and drunk driving, among other offenses, more employers than ever are finding themselves unprepared to answer that question.
Pure 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, a disgruntled employee and a demoralized staff.
In addition to consulting legal counsel, there are several things employers should do — or not do — and a number of questions to consider when they learn an employee has been arrested. Of course, these considerations apply to those already employed with a company, and not potential employees. Those potential employees may be covered by “ban the box” legislation, which prohibits consideration of arrests and convictions during hire but is silent on matters involving current employees.
When an employee is arrested, don’t talk to uninvolved third parties, such as the media or non-management employees. Employers are under an obligation to safeguard an employee’s legal rights — that includes ensuring that no harm comes to an employee’s reputation. Employees who do not have supervisory or decision-making status should not be included in discussions related to an employee’s arrest. Unnecessary disclosure of information could potentially result in a defamation claim if the employee is later acquitted or the charges are dropped.
Determine whether the employee is covered by an employment agreement or a union contract. Employment or union contracts may limit an employer from pursuing a termination or other disciplinary action. Where the arrested employee has an employment contract limiting the grounds for termination or the employee is covered by a union contract, the agreement’s terms must be checked carefully. An employment agreement may have very specific reasons for termination, and an arrest may not be among them. Taking action against a unionized employee usually must satisfy a “just cause” standard in a collective bargaining agreement. If the union feels this standard has not been met, it might file a grievance and ultimately take the case to binding arbitration, creating financial exposure for back pay and reinstatement. This may be the case if the alleged offense occurred outside of work and on the employee’s own time.
Was the alleged offense major or minor? Companies may be more tolerant of alleged crimes involving poor judgment, such as a recreational drug possession charges. However, an employer may be more likely to take disciplinary action against an employee accused of a more serious charge involving violence or crimes of planning and calculation, such as dealing drugs or robbery.
Big business or a small company? Bigger businesses are more concerned than smaller enterprises with the impact an employee’s arrest may have on their brand identities and reputations and will be more likely to impose a zero-tolerance policy. Conversely, small businesses — where owners are traditionally closer to employees and where staffing might be leaner — may be more supportive of the accused employee.
What potential impact will the arrest have on the rest of your workforce? Co-workers may be reluctant to work next to someone accused of a violent or other serious crime. Some businesses may not want such a person selling their products or interacting with customers.
Was the arrested employee treated fairly? Management always must be aware that other employees are monitoring the situation closely to see how it is being handled. They will be watching whether the employee’s rights were protected and if all the facts related to the case were uncovered before any disciplinary decision was made. Ultimately, employees are concerned about how they would be treated by management if they are ever in the same situation.
