employee arrests

ed

How to best deal with arrested employees - any problem in having a policy that felony arrests cause automatic termination?

Theresa Gegen TX

The EEOC's view about screening out applicants because of an arrest record has been that it results in a disparate impact against minorities. Statistics have shown that minorities are arrested in far greater numbers than whites, and that often times the arrests go no where. So a policy of immediate termination because of a felony arrest is dangerous. Each situation needs to be treated individually. For example, if the person is a driver and is arrested for DWI, that is job related. However, if the person is a store clerk and is arrested for DWI, it is not job related -- so probably should be handled differently. Remember, you can discipline the employee for missing work, even if the employee's excuse is "I was in jail".

ed

does the discrimination risk outweigh the increased workplace violence or negligent retention risks? - impossible to definitely say I know, but wonder how other companies look at it.

Theresa Gegen TX

I think that the best way to manage the risk is to deal with the facts of the case on an individual basis. The more job related the activity (for example, if a bank teller is arrested for stealing or a store clerk for shoplifting) the stronger case the employer would have. However, I think a per se rule (fire everyone who is arrested) could be quite dangerous. I know that I have clients who have addressed these issues in the past, and they have dealt with the case on an individual basis,.

Eileen

Can you ask either on the application or during an interview if someone has EVER been arrested (for any reason), or does it have to pertain to only felonies? I have heard that you cannot just ask the applicant if they have ever been arrested and that in doing so, you are targeting minorities.

dhnyct

My understanding is that the key word is "convicted" rather than accused or arrested.

Theresa Gegen TX

Generally, you shouldn't ask about arrests on applications. Again, this is because minorities are arrested more than non minorities. If you use a service to do background checks, you also need to instruct the service not to provide you with information about arrests.

Gar

We do not instantly fire people because they are arrested even if the act is related to the job. Nor do we ask applicants if they have ever been arrested. Because of the society we live in, people of color, primarily Hispanics and African Americans, tend to be arrested at a far higher rate than their white counter parts. Therefore, if the arrest is job-related, the employee is suspended pending the final disposition of the case. The same is true if the alleged crime could impact the workplace (murder, rape, selling drugs, etc.). If exonerated, the employee is reinstated. If convicted, employment may be terminated. Regarding our applicants, we only ask about criminal convictions.

Douglas Neu RI

If you're asking about convictions, you might want to ask about other pleas. In Rhode Island, and I believe some other states, we have what's called a plea of no contest (nolo contendere), in which the accused admits that the facts are sufficient to prove him or her guilty. It's something just short of a guilty plea, but in many circumstances constitutes a conviction. So it might be worth considering asking about convictions, including pleas of guilty and no contest. The key is to have the question on the application broad enough so that you get the answer you're looking for WITHOUT asking an illegal question, such as asking about arrests.

Douglas Neu
Editor, Rhode Island Employment Law Letter
Powers, Kinder & Keeney, Inc.
Providence, RI
(401)454-2000
[url]www.pkklaw.com[/url]
[email]dneu@pkklaw.com[/email]