Incarcerated Employee

M Warner · March 2002

We have an employee who is facing a 2-3 month prison sentence. As his employer, what is my obligation to him? Am I required to keep his job open, as in a FMLA situation? If not, do I suspend him? Fire him? He is a good employee and his current legal problems are unrelated to our working relationship with him.

Hatchetman · March 2002

If he has been convicted of a crime, independent of whether or not it is a job related matter, and he goes to prison, you do not have to authorize the absence and can terminate him for unauthorized absence (generally, it is not a good idea to grant leave for jail time). You may want to let him know that you will not keep his job open for him while he serves his sentnece and hterefore, he may want to resign.

If he does, and he then re-applies for emplyment with you upon his release, you can decide whether or not to hire him. At that point, dpending on cirfcumstances, you then may want to consider job-relatedness of the conviction, but you don't have to.

If resigns, do NOT offer any guarantee or even suggest that you'll rehire him -- unless you actually would.

M Warner · March 2002

Thanks for the advice. I feel much more solid about dealing with this unfortunate situation.

Dottie · March 2002

I agree with Hatchetman. One thing you must consider in this type of situation is setting precedent. If you keep this employee's job open, what do you do the next time one of your employee's goes to jail? Terminating his employment (or offering him the option of resigning), and suggesting he re-apply for employment once he has served his time seems like the best approach to me,too. As Hatchetman said -- do NOT offer any guarantees of employment. This could easily set you up for a discrimination claim elsewhere.

Incarcerated Employee

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