This article was originally published on September 28, 2020.
With about 157 million individuals in the U.S. workforce and 10 million Americans arrested each year, there’s a possibility that at some point, one of your employees will be arrested.
Ensuring the safety of employees, customers, and partners is an ongoing top priority for employers. It may seem logical to dismiss an employee arrested for a crime – especially one that is violent and for which such conduct could jeopardize other people’s well-being. Data show that fewer than five percent of arrests involve violence and many people arrested are never convicted. What does this mean for employers, and how can they follow the best course of action?
Employee arrests can be confounding for HR leaders and teams. While there are certain situations in which termination may be justified, there are legal ramifications if an employee is wrongfully let go, while potentially having a significant bearing on the employee’s future career. Instead, the right approach is to gather information, understand the impact of any disciplinary action, and support the employee and the company as a whole.
Rather than rushing to a decision, you’ll want to do as much objective research as possible.
First, you’ll need to understand the laws and regulations in your state, and the employee’s state of residence. In some states, for example, it may be illegal to simply ask an employee about an arrest. The point is to collect whatever information you can about the situation, including state employment and termination laws, and public records regarding the particular charges, and speak directly with the employee while taking your company’s policies into consideration. Many companies have an arrest self-disclosure policy, requiring employees to notify the organization within a few days of being arrested.
Given the legal risk, an arrest alone doesn’t necessarily equal grounds for termination. There are numerous instances of employees who were wrongfully terminated after an arrest not convicted of the crimes, ending in a lawsuit with the employer. There are some exceptions, of course, if the nature of the arrest raises concerns about their fitness for the role. For example, if a bus driver is arrested for drunk driving, that may be sufficient grounds to terminate them. Alternately, if the employee ends up being incarcerated for an extended period and their role is essential to the company, termination may be appropriate as well.
No matter the situation, you should consult with legal counsel before making any decisions, as well as explore alternate options like suspension with pay until all the details are known. In addition to the legal and financial ramifications, it’s also critical to understand how disciplinary action can affect the arrested employee’s future. Codes of conduct and other internal policies should be drafted to provide clarity on expectations regarding an arrest.
Keep in mind that employees who are terminated due to an arrest and conviction can face significant obstacles for the remainder of their careers. Job candidates with prior convictions are 50% less likely to be called back for an interview. As much as 1% of the unemployment rate is said to be an “employment penalty” for those with a criminal record, given the challenges they face in getting hired.
The nature of arrests can vary greatly. If it’s a first-time offense, a traffic violation, or an offense that holds no bearing on the job, or if it's simply a matter of being in the wrong place at the wrong time, jeopardizing an employee’s future may be avoidable. Being supportive of these employees, such as offering counseling services through the benefits provider or connecting them to courses for drug or alcohol abuse or anger management is the proactive approach that could provide a better outcome for everyone.
If it is possible, quickly initiate a conversation with the employee to understand the circumstances leading to the arrest. Continued isolation due to COVID-19 and uncertainty are contributing to increases in substance abuse and other behavioral issues. Situations such as these may warrant referral to an employee assistance program, legal support, or behavioral health treatment, but not necessarily immediate termination.
In any case, knowing when an employee arrest occurs is crucial to being ready to take the appropriate action. With continuous monitoring of incarcerations, background screeners can provide employers with comprehensive, real-time monitoring and alerts when an employee is arrested. As a result, the employer can immediately begin to assess the situation, engage with the employee, identify the risks of the employee’s actions, and determine the next steps.
Depending on the alleged crime, an arrest does not necessarily equal grounds for terminating an employee’s career with your company — nor does it need to prevent them from gaining employment elsewhere. Following the steps above can help you support these employees during such events and recognize when disciplinary action is warranted. As a result, you’ll be able to build greater trust and loyalty with all involved, while contributing to a safer workplace.