Posted on / Updated on / in Blog & HR Policies /

What To Do When Your Employee Is Arrested

It’s the phone call you don’t want to receive while blissfully dreaming about increasing your profits. It’s the headline you don’t want to see while drinking your morning coffee. Your employee was arrested last night.

Yeah, you read that right. Now, pick up the pillow you just threw across the room or clean up the coffee you just spit out. You’ve got work to do.

Luckily, we’ve broken down the steps for you to take to handle this situation. The first one is pretty obvious.

3 Steps To Take When Your Employee Is Arrested

Step 1 – Don’t Panic

As a manager or business owner, panicking and making a rash decision is the worst thing you can do. The last thing you want to do right now is to make a decision that breaks some labor law that leads to an expensive lawsuit. Let’s not go there.

Remember – this is America. Everyone is innocent until proven guilty. Arrests do not concretely indicate that a crime has been committed. Keep repeating this over and over until you actually believe it and then move to step 2.

Step 2 – Listen to Your Employee

Luckily, there are no federal laws that prohibit an employer from asking about arrests. Therefore, it is best to allow the employee to explain the situation.

Maybe it was a wrong place, wrong time kind of deal. Or maybe it was a little more serious. Either way, you need to gather as much information as possible about the arrest, circumstance, possible charges, and the employee’s immediate future.

Unfortunately, if your employee is still in jail, you may need to rely on another source for the information. The best source of information would be the arrest record. Don’t worry – arrest records are public information and can be found at local courthouse or police station. But first, check your state’s laws regarding employers inquiring about arrest records. That’s takes us to step 3.

Step 3 – Figure out what you can do – LEGALLY!

Now that you have all of the information, you need to figure out what you can do (legally that is). First, become familiar with your state’s laws regarding conviction.

In states where there are no bans on employers inquiring about arrest records, the employer has the right to carry out employment decisions based on the employee’s conduct associated with the arrest.

If the conduct is deemed relevant to the workplace and shows the employee may be unfit for their position, termination may be applicable.

Employees may also be dismissed for incapacity if they are locked up for a period of time that expends all of their available time off. Also, if you can prove that your company cannot operate without that position, you can terminate the employee and find a replacement.

Employee Arressted

(Please keep in mind that you cannot fire an employee for simply having a criminal record.)

After analyzing the situation, instead of terminating the employee, it may be more appropriate to grant the employee a leave of absence, suspension, or temporarily move them to a position that is less public, at least while the criminal investigation is ongoing.

Now, what about compensating your employee? If the employee is suspended by the employer and is remanded in custody pending trial, employers are not required to continue to pay the employee during that time.

If the employee is suspended, still able to work, has not been remanded in custody, the employee is still required to receive his/her normal pay.

Important – if your employees are unionized, employees may also be protected by union contracts! Be sure to check that out before you do anything.

Lastly, if this is a very serious situation, you may want to seek legal counsel.

What You Can Do Today – Develop Your Policy

So you think this will never happen to your business? Think again. In 2011, over 12 million people were arrested in the US (according to the FBI). If that number doesn’t scare you, how about this one: In 2011, 1 in every 25 Americans was arrested. Ouch. How many employees do you have?

Before you start doing the math on your chance of having an employee get arrested, let’s remember that there is something you can do right now to make this situation less hectic.

At Integrity HR, we believe it is better to be proactive than reactive. Develop your procedure today so that if/when this unfortunate situation happens at your company, you are prepared.

Criminal Conduct Procedure

Here Are 6 Best Practices To Follow When Developing Your Criminal Conduct Procedure

1. Have a written policy (in accordance with the EEOC) for applicants and employees concerning criminal conduct. This policy should include what offenses may deem an individual unfit for a given position and what disciplinary action you will take in this circumstance.

2. Maintain employee confidentiality and disclose the arrest information to other individuals in the company on a need-to-know basis.

3. Consider the feelings of the other employees, as not all may be comfortable working alongside someone arrested for a harsh crime.

4. Make sure your procedure does not cause a disparate impact on the protected groups.

5. Consider the size of the company and what the impact of the arrest will have on the company’s brand identity and reputation. This may influence how strict you are in your policy.

6. Finally, don’t forget to train your managers on the policy and procedure.

In the end, there is no magic button you can press to erase this type of situation. That’s why it pays to be prepared.

If you have any questions about developing policies and procedures for your company, do not hesitate to contact us. 

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about the author: Amy Letke

Amy Newbanks Letke, SPHR, GPHR, is the Founder of Integrity HR, Inc. Amy provides workplace solutions to improve performance, reduce liability and increase profits. She is passionate about helping other entrepreneurs and business owners achieve success.

currently there's 2 comment(s) Would you like to add your thoughts?

  • allisonlewisphotography.com

    commented on September 10, 2020 at 5:28 am

    As a business manager, you should already know by now that making decisions out of panic is probably one of the worst things you can do to your business. Don’t panic. Relax, it’s America; until you’ve been proven guilty, you’re still innocent. You need to keep it in mind that an arrest doesn’t mean the employee committed the crime until you find yourself calm enough to proceed to the number two step.

  • Anoeska

    commented on December 26, 2020 at 11:43 am

    So when your employee catch you on camera and they call the next day the police what will happen will the worker be able to come out the next day or what ?