If you discover that an employee has been arrested for a crime, you may decide to adopt a wait-and-see approach, especially if the arrest was for a minor offense or there is reason to believe the arrest may not result in formal charges or a conviction. After all, this is America where people are presumed innocent until proven guilty. Still, employees who are arrested do not have an absolute right to escape the consequences of their arrest until their case winds its way through the court system.
Either way, an employee’s absence from work due to an arrest, court appearances, or incarceration may be addressed the same as any other unexcused absences under your company’s attendance policy. In addition, depending on the seriousness of the charge, you may choose to at least suspend the employee without pay pending the outcome of any court case.
In the meantime, employers can and should inquire about the conduct and the circumstances underlying the arrest. This will allow the employer to determine whether the employee’s conduct will either have a negative impact on the business’s reputation or the employee’s ability to do his or her job. Some questions to consider are: (i) Has the employee’s conduct negatively affected your confidence in the employee’s ability? (ii) Does the employee’s conduct endanger the safety and security of your other employees or customers? (iii) Has the employee’s conduct caused a disruption in workplace productivity? And (iv) Has the employee’s conduct gone against your company’s mission and values? The employee does not have to answer these questions, but if he or she does not, then you will have a legitimate basis to consider immediate termination.
The large majority of criminal cases that proceed past the charging stage likely will be resolved by a plea of no contest or admission of guilt. If your employee admits to violating the law, as a general rule, federal law does not prohibit employers from taking action because of an employee’s criminal activity. Note, however, that using a criminal history may violate Title VII and state discrimination statutes if employers treat employees with similar criminal records differently based on their race, national origin, or other protected characteristic. In short, treat everyone the same.
Remember also that employers obtaining prior criminal histories through a consumer reporting agency also must follow the Fair Credit Reporting Act. Among other things, the FCRA requires employers to obtain an employee’s permission before performing a criminal background check. The FCRA also requires employers to provide a summary of FCRA rights to the employee and deliver specific notices to the employee before and after any negative employment action.