Ask HR: What to Do When an Employee Has Been Arrested

SHRM President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP, answers HR questions each week.

Do you have an HR or work-related question you’d like him to answer? Submit it here.

I recently found out one of my employees was arrested over the weekend. As her manager, if I’m concerned about the safety of our workplace, do I have any recourse in inquiring about the nature of the infraction? What can I do to protect my other employees? — Isaac 

If an employee is arrested, it’s natural to be concerned about the potential impact on the workplace, particularly if safety is a factor. However, navigating this situation requires caution to ensure compliance with employment laws and to avoid making erroneous assumptions without having all the facts. I recommend these steps:

1. Gather information. It pays to do your due diligence. For starters, an arrest does not mean a conviction; employers should not assume guilt. Depending on your state’s laws, you may be able to ask the employee about the nature of the arrest. If the arrest could be relevant to job performance or workplace safety, it’s particularly important to make a reasonable effort to verify the facts before taking any action.

2. Assess job relevance and safety risks. The key issue is whether the conduct that led to the arrest is job-related and presents a legitimate risk. For example, if an employee whose job entails driving was arrested for DUI, it may pose a safety concern. However, an arrest for an unrelated offense (e.g., disorderly conduct at a personal event) may not justify employer action.

3. Consider employment policies and legal guidance. Many companies require employees to disclose arrests if they could impact their work responsibilities. The Equal Employment Opportunity Commission (EEOC) states that an arrest alone should not be the basis for termination. However, employers may take action based on the conduct that led to the arrest if it affects the employee’s ability to perform their role. State laws vary, so I recommend consulting with legal counsel before making any employment decisions.

4. Maintain confidentiality and fairness. Keep discussions about the arrest private and professional to avoid potential discrimination claims. Apply policies consistently to all employees in similar situations.

As a manager, protecting your workplace is essential. If there are credible safety concerns, you may be able to take steps such as:

• Placing the employee on leave while you gather more information.

• Adjusting job duties temporarily if the arrest relates to the employee’s work.

• Implementing additional workplace security measures if needed.

Ultimately, your response should be fair, job-related, and legally sound. If you’re unsure how to proceed, consulting HR or legal counsel can help ensure you make an informed decision to protect both your employees and your organization.

Our leadership recently divulged that another company is acquiring us. We may be terminating or reassigning some staff who have duplicate roles. I’ve heard those impacted may receive a severance package. Why do employers offer severance packages, and what do they typically include? — Pam 

Severance packages are a way for employers to support employees impacted by job eliminations due to mergers, acquisitions, or workforce reductions. While not legally required in most cases, companies often provide severance to ease the transition for affected employees and mitigate potential legal risks.

Employers may offer severance packages for various reasons: 

• Goodwill and reputation. Providing severance helps maintain a positive relationship with employees and safeguards the company’s reputation.

• Legal protection. In many cases, employers require employees to sign a severance agreement that includes a waiver of legal claims in exchange for compensation.

• Smoother transition. Offering financial support and job placement assistance can help employees land on their feet more quickly after separation.

Severance packages may vary based on the employer’s preference and the circumstances of separation. Such packages may include:

• Salary continuation. A lump sum or periodic payments, often calculated based on years of service.

• Health insurance assistance. Employers may cover COBRA health insurance costs for a set period.

• Unemployment benefits support. Some companies agree not to contest unemployment claims, making it easier for affected employees to receive benefits.

• Outplacement services. These could include career counseling, resume assistance, or time off to search for new employment.

• Reference agreements. Clarification on what information will be shared with future employers.

• Other perks. Loan forgiveness, the ability to keep a company phone or laptop, or other negotiated benefits.

Employees may be required to sign a waiver of claims to receive severance, but some legal rights — such as those under the Fair Labor Standards Act and Age Discrimination in Employment Act — cannot be waived without specific conditions being met.

State laws may also impact severance agreements, so employers typically consult legal counsel before finalizing terms.

If your company is offering severance, it’s a good idea to review the details carefully and seek professional advice if needed. If you or your colleagues are impacted, understanding the terms and negotiating where possible can help maximize the benefits of your exit package.