Busted! What's HR to do when an employee gets arrested?

It's HR's Monday morning nightmare: one of your employees has been arrested. Now what? With more than 2.1 million Americans in jail or prison, it's a problem more common than one might think.

Pure instinct--we have to fire that guy!--can lead employers astray when an employee has been arrested. That's particularly true if the charges against the employee prove to be false. So slow down.

Before deciding the worker's job status, follow these guidelines and reach out to your attorney before making any termination or discipline:

  1. Keep it 'need to know.' Don't talk to uninvolved third parties, such as the media. Don't add to the rumor mill by gossiping to co-workers.

    Employers have an obligation to ensure that no harm comes to an employee's reputation. Otherwise, you risk a defamation lawsuit if the employee is later acquitted or the charges are dropped.

  2. Assess contractual limits. Is the employee covered by an employment agreement or a union contract? They may limit you from pursuing a termination or other disciplinary action.

    Carefully check the agreement's terms. It may require very specific reasons for termination. Collective bargaining agreements often require "just cause" to fire an employee. In either case, being arrested may not qualify.

  3. Gauge the severity of the offense. Was the alleged offense major or minor, violent or victimless? Does it relate to the job? Those answers may give you more justification to terminate or suspend.

  4. How will it affect your workplace? Co-workers may be reluctant to work next to someone accused of a violent or other serious crime. Some businesses may not want such a person selling their products or interacting with customers.

  5. Treat the arrested employee fairly. Be aware that other employees are watching to see if you treat the employee fairly, and whether you review all facts before taking action.


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