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,.

dhnyct

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

PR in WA

Here's a new twist on a simliar issue. We have an employee that has been under house arrest who was also on FMLA for a health condition intermittently. They subsequently received a medical release to work part-time and the conditions of their house arrest allowed them to leave home only to go to work. Apparently, the employee violated their house arrest and is now incarcerated for an extended period of time - so they cannot come to work even part-time. We are in a quandry for what to do next. The employee is asking for FMLA coverage during their incarceration because they still have the medical condition. However, it's the incarceration that is preventing them from coming to work on a part-time basis, not the medical condition. Has anyone else dealt with a similar situation?

Hatchetman

It seems to me that if the employee had been cleared to return to work on intermittent basis and then doesn't return to work at all because of arrest, then he is not available to work for the time that he is ABLE to work. Depending on your exact policy and procedures, you should deem that absence as unauthorized (don't include the previously approved intermittent leave) and order the employee to return as scheduled or be fired, or fire the employee straight out (for the unauthorized absence). I'm sure your company doesn't grant leave for employees who are arrested and incarcerated (even pending trial) and therefore DON'T REPORT for work. You may want to contact the employee and see if he'll resign.

Gar

I haven't had this situation before but it seems to me that since the employee is in the slammer, fire him/her.

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.

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]

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.

ed

I understand that, and we don't do it - what I was asking about are arrests (sometimes for serious offenses) of current employees.

catherder

I,too, am interested in how others are dealing with current employees who are convicted of felony offenses such as sex crimes. These may or may not have job-relatedness. However if we don't know you have been convicted we can't assess the impact. Does anyone have a current process to find out about convictions of current employees or a policy that includes termination for some major offenses like sex crimes involving children?

Janet

I'm trying to get info on the same thing. What if an employee is arrested for drug possession? What can or should the employer do? We do have a policy on a "drug free workplace", but don't do random drug screens.

Tricia

We had the same type situation here at our company. We placed the employee on supsension until the end of his trial. This case involved assault with a deadly weapon. He was convicted of a midemeanor, which means he will be able to return to work. We really don't have a way out for this one because it is a midemeanor. In your situation, if the employee is convicted of a felony, then you could fire him/her (as long as it is in your employee manual). You may want to check with an employment lawyer in your state or your local employment security commission.

WT

If you discharge an employee for an arrest or conviction for crimes committed outside of the work place, you may well end up in front of a third party. If so, the likely question is whether there is a "nexus" or connection between the conviction and fitness for employment. A bank employee who steals or a day care employee who molests children would have this nexus. Further, an employer can make a case for an employee causing shame and adverse publicity if the media identify the employer in connection with crimes of the employee. On the other hand, a construction worker who gets drunk and disorderly on weekends may not have any nexus at all. The courts have the function of punishing illegal behavior that happens outside of the work place. As a general rule, third parties are not sympathetic to the employer trying to add punishment in the way of discharge to what courts have already applied.

CuriousG

In my selection process, and company policy, I focus on "felony convictions."

As I interview each candidate I make sure to ask them "Have you ever been convicted of a felony crime, whether or not you served time?" If the answer is "yes" then I will proceed to explore with the candidate the circumstances fo the crime and the conviction.

If I extend a job offer to any candidate it is always predicated on completion of a satisfactory background investigation. This includes a criminal background investigation (cbi). In the cbi I attempt to confirm or contradict the information the candidate gave me in the interview process. If a conviction shows up that the candidate did not reveal it is grounds for withdrawing the offer. If the facts of the case do not agree with what I was told in the interview it is grounds for withdrawl. Only if a) I judged the conviction to not have a nexus to the job I was filling and b) the cbi confirms what I was told in the interview do I then proceed to put the employee on the payroll.

Our policy for employees states that "conviction of a crime by a court of law ..." falls within our definition of "misconduct" and could result in disciplinary action up to and including termination. Management reserves its right to use it's best judgement and discretion, and handles cases like this on their individual circumstances and merits.

Gar

Race/ethnicity and the EEOC aside, there has to be some degree of reasonableness in these situations. It's not reasonable to fire employees simply because they get arrested. If the crime is job related (theft and the employee is a cashier) we place him/her on interim suspension pending the out come of the matter. If the crime isn't job related we may permit the employee to continue working. Rape, assault and homocide charges lead to interim suspension. The same is true for alleged weapons violations and drug charges. If the employee "beats the rap" he/she is reinstated. If not, employment could be terminated. Each matter is viewed on a case-by-case basis with due regard to the offense and it's circumstances, the conviction, the penalty, the employee's record with the employer, etc. For instance, we're probably not going to fire a model employee who has been with the firm for 15 years and is convicted of a non-job related crime that resulted in a penalty of 100 hours of community service. Again, be reasonable.