Employee Arrests Outside of Work: 5 Critical Factors Employers Must Weigh

With employee arrests outside of work, employers face a challenging situation that requires careful navigation of legal and ethical considerations. The balance between protecting employee rights and safeguarding the business is crucial when responding to employee arrests. The following summarizes best practices from the SHRM article, “Tread Carefully When an Employee Gets Arrested Outside of Work,” by Leah Shepherd.

When determining next steps after an employee is arrested outside of work, the following factors are key to the decision making process:

Employee Arrests vs. Conviction:

It’s vital to differentiate between an arrest and a conviction. An arrest is not proof of guilt, and it should not be treated as such. Using arrest records for employment decisions can potentially violate the Civil Rights Act of 1964. Additionally, certain states have laws prohibiting employers from considering arrests that do not lead to convictions when making employment decisions. Always ensure that state and federal laws are being followed throughout the decision making process.

Due Process and Fair Investigation After Employee Arrests:

When an employee is arrested, it is important to avoid jumping to hasty conclusions. Allow the employee to explain the circumstances of the arrest, and conduct a thorough internal investigation to gather accurate information. It is imperative that the arrest is only discussed with individuals involved in the decision making process. Unnecessary disclosure can lead to defamation lawsuits.

EEOC Guidance on Employee Arrests:

While a criminal record is not a protected status, discriminatory application of policies is illegal. In other words, it is illegal to respond to criminal history differently based on an individual’s protected characteristics such as race, gender, and disability status. For example, if a male and female employee are both arrested for the same crime, it would be considered discriminatory to fire the male while retaining the female employee. Apply the same standards to all employee arrests, regardless of who is involved.

Job Duties and Business Necessity:

Consider both the nature of the employee’s alleged crime and their job description when determining disciplinary actions for an arrested employee. Importantly, is the alleged crime directly related to the employee’s job? For example, there is a clear connection between the crime and the job when an accountant is being arrested for embezzlement.

That said, there is no clear connection between the crime and the job when a mechanic is arrested for a drug charge. Also consider the risk associated with the arrested individual continuing to work in a particular role. For example, allowing an individual arrested for a violent crime to continue working with small children is clearly risky, while allowing an individual arrested for selling drugs to continue working on an assembly line poses less of a threat.

Determining Disciplinary Actions for Employee Arrests:

The appropriate response to an employee’s arrest will vary based on the above factors. Employers may choose to suspend (with or without pay), terminate, or retain an arrested employee, but it is crucial that disciplinary actions are applied consistently in similar circumstances. In order to best protect your organization, take the following steps:

• Develop a clear policy for handling employee arrests.
• Train HR and management on legal compliance.
• Document all investigations and actions.
• Seek legal counsel for complex situations.

By following these guidelines, employers can navigate employee arrests while minimizing legal risks and maintaining a fair workplace.

Frequently Asked Questions About Employee Arrests

Can an employer fire an employee for being arrested outside of work?

It depends. An arrest is not proof of guilt, and some states restrict employers from considering arrests that do not lead to convictions. Employers should weigh the nature of the alleged crime, its connection to the employee’s job, and applicable state and federal law, and seek legal counsel before acting.

What is the difference between an arrest and a conviction?

An arrest means a person has been taken into custody on suspicion of a crime. A conviction means a court has found the person guilty. Because an arrest alone does not establish guilt, it should be treated very differently from a conviction in employment decisions.

Should employers tell coworkers about employee arrests?

No. Information about employee arrests should be shared only with the people directly involved in the decision making process. Unnecessary disclosure can expose the organization to defamation claims.

Can an employer suspend an employee after an arrest?

Yes, suspension with or without pay is one option, along with termination or retaining the employee. Whatever the response, it should be applied consistently to employees in similar circumstances.

What should an employee arrests policy include?

A clear policy should explain how the organization will gather information, who will be involved in decisions, which factors will be considered (such as the nature of the charge and the employee’s job duties), how actions will be documented, and when legal counsel will be consulted.

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For more HR considerations, see our collection of articles here.