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In a previous article, we outlined the considerations in responding to the arrest of an applicant. Today we will look at considerations when an employee is arrested. As noted before, an arrest indicates a charge, not a conviction. However, depending on the nature of the charge, appropriate action may be taken.
You may find out about an employee’s arrest through a variety of ways including the news, other employees or customers, or the employee themselves. An employee’s arrest may well have a bearing on the short-term or continued employment. Issues to consider include:
If the employee is incarcerated, the time away from work may exceed the allowed absences under your attendance policy, eliminating the need for evaluating the charge itself. Follow your policy on unscheduled absences and take appropriate action. If an employee is arrested and then released and then inquires how it will affect their job, you can ask about the details of the charges and the employee’s explanation. Evaluate the nature of the charge and potential impact on your business. As it may take time to gather information to decide your next steps, your answer may be that you will have to get back to the employee with your response. Depending on the nature of the charge you may need to suspend the employee, more than likely without pay, until your investigation is complete.
The employee may provide information that will assist you in making the decision. An admission of some involvement may make it more straight forward for you to make a judgment on the next step. Also if that admission includes conduct off the job that would result in termination, with or without conviction, you can take action based on your policy as you would with any employee.
You may need to gather outside information to make an informed decision on the seriousness of the charge and the impact on your business. Arrest records are public records which the employer may access directly through the court. Use of any third party to access this information (including third party websites) subjects you to the requirements of the Fair Credit Reporting Act. (See The specified item was not found..) If you do background checks through CAI, the initial FCRA-compliant release form is provided to secure authorization. If you use other services, you should check the release to see if it includes this language.
As you can see this situation has many variables to consider. Should you have such a situation call CAI's A&R team and we can help you think this through, weigh the options, and mitigate your risk to the business.