Do you know what to do if one of your employees is arrested and charged with a crime?

Think carefully before you fire the employee. After all, an arrest is not the same as a conviction. You could be the butt of a wrongful termination suit if the charges are dropped, the employee is acquitted or a plea bargain reduces the charge to a misdemeanor.

Things you’ll need to consider before you decide: Is the offense related in any way to kind of work the employee does? How long will the employee be away from work? Do the charges affect your brand identity and reputation? Do they compromise your business interests?

Those considerations are important, because courts will support termination if you can show a connection between the charge and the business. Kelly v. Linamar Corp is one such example, Kelly was charged with possessing child pornography at his home. The court ruled that termination for cause was justifiable because Linamar had a reputation for promoting children’s charities.

Short of firing your employee, you could treat the arrest as an absence or personal leave. If there is a clear conflict between the offense and the employee’s job – for example, the employee is accused of assault and has a job that requires contact with the public – you could also suspend the employee, with the proviso that he or she be reinstated upon acquittal, or terminated upon conviction.

You can also conduct your own investigation of the charges. In that case, your best bet is to hire an independent, outside party to investigate. In California, courts have ruled that employers are shielded from liability if they rely on an attorney’s conclusion to discipline or terminate the employee – even if that conclusion is wrong.

If your company has a policy for such situations, make sure you apply it consistently and fairly. You don’t want to be accused of discrimination.

If your company doesn’t have a policy, you might consider adopting one.

You could require employees to report the arrest to you, along with a police report or other documentation. Failure to comply or misrepresentation of the circumstances surrounding the request could be grounds for dismissal.

Make sure you don’t trample on an employee’s rights.

  1. Membership in a union could affect any disciplinary action you take: Check the terms of any such agreement before you act.
  2. Don’t talk about the arrest with non-management employees, and certainly not with the media. You could end up with a defamation suit if the employee is acquired or charges are dropped.

It’s advisable to consult legal counsel. That will protect you if the employee finds grounds to sue you.

Does your company have a policy for workers arrested for a criminal offense? If you have questions or concerns, contact Johnson Employment Law for guidance. 949-238-8044