Tread Carefully When an Employee Gets Arrested Outside of Work

Leah Shepherd By Leah Shepherd August 4, 2022

When an employee is arrested outside of work hours, it's never welcome news, but there are some key do's and don'ts for HR professionals to keep in mind. It's not easy to find a balance between protecting the rights of a worker who has been arrested and protecting your business and the rest of your employees.

Employers and HR professionals need to understand how federal and state laws treat the difference between arrests and convictions. In some cases, using an individual's arrest record in making employment decisions could violate the federal Civil Rights Act of 1964.

After an arrest, the employer should not assume the employee committed the crime. Instead, the employer should give the person a chance to explain the circumstances. Then the employer might conduct an internal investigation and determine whether the person's explanation is reliable. 

"The initial information that an employer receives is often inaccurate, exaggerated or incomplete," said Ann Wicks, a lawyer with Withers Bergman in San Francisco. "Gathering information is usually the first step, but an employer needs to be very deliberate in who gathers the information, who has access to that information and what they do in response to the information. Jumping to conclusions, spreading gossip and overreacting can be very costly."

Depending on the evidence, the internal investigator might recommend unpaid suspension, paid suspension, termination or no action. Unlike an arrest, a conviction is sufficient evidence that the employee committed the crime.

In states that don't ban inquiries regarding arrest records, employers can make employment decisions based on the conduct underlying the arrest if the conduct makes the employee unfit for the position, according to Equal Employment Opportunity Commission (EEOC) guidance released in 2012. The conduct, not the arrest, is relevant to employment decisions.

Job Duties Matter

Employers should consider three factors: the nature of the crime, the nature of the job and the time elapsed, according to the EEOC. Does the employee sell products or interact with the public? Depending on the job duties, the conduct might conflict with business necessity. For example, it would be justifiable to fire a chief financial officer who was arrested for embezzlement. However, it would not be considered job-related or tied to business necessity if a mechanic was arrested for selling drugs.

"The more a person works in public and goes to meet with customers, the greater the risk of possible liability and the greater the requirement of taking a close look at the hiring and retaining of an employee," said Andrea Johnson, an attorney with Kane Russell Coleman Logan in Houston.

Placing the employee on leave "can be an attractive option while the matter works its way through the legal system, especially where the crime is violent or bears directly on the employee's duties," said Kelly Muensterman, an attorney with Polsinelli in St. Louis. "Then, if the employee is ultimately cleared of the alleged misconduct, some employers will reinstate the employee with back pay. In other instances where the crime is more minor, not embarrassing to the company reputationally and not concerning as it relates to the employee's duties, then more minor discipline such as a verbal or written warning may be appropriate."

If two employees have similar arrests and similar job functions, then the employer's actions toward them must be consistent. It's illegal for an employer to treat criminal history information differently for different applicants and employees based on their race, national origin, gender, disability or religion. However, having a criminal record isn't a protected status under federal law.

"It is not that we can't fire people for being arrested or convicted. The question is, will we be charged with discrimination if we do, or will we face tort or other liability for retaining a person under criminal suspicion? We need to consider if our decisions are consistent and fair," Johnson said. "They are not always the easiest questions to answer, but with sensitivity and logic, employers can find the appropriate legal balance and do what is right for the company."

An employee might miss work while in jail or court hearings. When an arrest impacts a worker's attendance, make sure to apply your attendance policy fairly and consistently to avoid discrimination claims.

"One of the primary causes—if not the primary cause—of discrimination lawsuits is alleged differential treatment," Muensterman said.

Employees who don't have a supervisory or decision-making role should not be included in discussions about another employee's arrest. Unnecessary disclosure of information could lead to a defamation lawsuit.

States Vary

State laws differ on when an employer has the right to fire an employee because of an arrest. Most states consider employees to be working at will, meaning the employer can fire them at any time for any cause, as long as that move isn't considered discrimination or retaliation. But some jurisdictions have exceptions to this rule. A number of states, including California, prohibit employers from considering arrests that do not lead to convictions when making hiring and termination decisions.

In addition to state and federal laws, consider what's in the person's employment contract or union contract. The contract might prevent the employer from taking punitive action unless there's good cause for it. On the other hand, the contract might include provisions related to character or morals, such as a requirement to report any arrests or convictions. Sometimes, an employee may be legally fired because the worker violated the contract by failing to report an arrest or by lying about an arrest. 



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