It’s a question more employers worry they will 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. If you learn that one of your employees has been arrested, consult your attorney so you can consider all available options before making any decision on the worker’s job status.
Also, it’s important to be aware of the employee’s 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.
Keep it ‘need to know’
In addition to consulting your attorneys, there are several things you should do—and not do—and a number of questions to consider when you learn an employee has been arrested.
Of course, these considerations apply to those already employed by you, and not potential employees. Note, however, that applicants 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 nonmanagement employees.
Employers have 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.
Contractual limits?
Determine whether the employee is covered by an employment agreement or a union contract. They may limit you 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, carefully check the agreement’s terms. An employment agreement may have very specific reasons for termination, and being arrested may not be among them.
Taking action against a unionized employee usually requires satisfying 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 especially be the case if the alleged offense occurred outside of work on the employee’s own time.
Assess the severity
Was the alleged offense major or minor? You may feel like you can be more tolerant of alleged crimes involving poor judgment, such as a recreational drug possession charge.
However, many employers are 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.
What risks do you run?
Are you a 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.
Strive for fairness
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.
Sean P. McDevitt is a partner in the labor and employment group of Pepper Hamilton LLP. His practice includes counseling management clients in labor relations and employment matters, representing management before administrative agencies (including the National Labor Relations Board, the EEOC and the Delaware Department of Labor) and defending employers in state and federal courts, including the Delaware Court of Chancery, in wrongful discharge and employment discrimination litigation.
