Navigating Employee Arrests Outside of Work: Best Practices for Employers

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. 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:

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:

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.

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:

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.

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