Question on Employee / Termination?

bama76 · January 2003

One of our employees was arrested on a drug charge yesterday early AM. We called just curious as to what his bond would be, and they informed us he was holding to be transferred to the county jail because it was a felony charge. Are we allowed to legally terminate him or consider it job abandonment? Or should this be considered violating our drug policy? Please help.

Gillian · January 2003

It's job abandonment. That's the easiest way to go.

bama76 · January 2003

Do we have to wait on the five day no call/no show to consider it job abandonment? Also, what if he calls in before the five consecutive days are up?

Gillian · January 2003

Most people have a three day rule regarding no shows. If he call in before the time is up inquire as to when he will be back. If he is in jail but calling in he is still missing work so your attendance policies will kick in.

bama76 · January 2003

We don't have an "official" attendance policy, and the state's rule for unemployment is five consecutive days no call / no show. So I should probably just wait until those days are up and terminate him, correct?

Gillian · January 2003

It depends on whether you want to make your state unemployment compensation rules your rules. They don't have to be. You may not have an "official" attendance policy but I bet you have an unofficial one, which is that you do not accept absense from work for days on end. You can terminate him. If you have previous incidents where someone was out for five days before you terminated the person, then you might want to follow that. Actually, terminating this person is very low risk if you did it now, unless there is some complicating factor such as race, long length of service which can be brought up.

Crout · January 2003

I agree with Gillian. I'm guessing you would need proof before terminating based on a violation of your drug policy, and how can you test the EE if he is in jail? It's much better to fire him based on job abandonment. I would still proceed with the termination even if he does call in. Calling in won't change the fact that he won't be coming in to work for the foreseeable future, and it's doubtful that he could give you a date when he could return to work anyway.

Trinity · January 2003

One thing to add..does this employee have any vacation days (or any PTO depending on how you work) earned but not taken? If they are able to post bond and come back to work within the time allotted for those days, you may not be able to say job abandonment, unless you have heard no contact after the 5 days. If he/she does contact you and wished to use their earned time off, I believe it may fall to your PTO policy of giving advanced notice and such. Also, if they were to be convicted of the drug charge, I believe you could dismiss them for miuse of your drug policy, since any conviction of the state should cement whether miuse occurred or not.
Thanks
Trinity

Hatchetman · January 2003

[font size="1" color="#FF0000"]LAST EDITED ON 01-15-03 AT 08:33PM (CST)[/font][p]Take the issue on as "unauthorized absence." You don't have to approve an absence due jail time; I suspect no company does. That's not to say that if an employee is absent for a very short period of time, like a day, because he or she was jailed, and then got released pending trial or whatever, that you therefore have to terminate. But where the absence is for a few days, let the employee realize that jail time is not a justifiable reason for the company to authorize a leave.

Technically, you could order the employee back and failing his or her return in compliance wiht the order discharge for the unauthroized absence and failure to follow instructions. What you may want to do is to go to the jail and perhaps have the employee sign a resignation paper. I did that with a jailed employee and he resigned. I had talked to the jail administration first to tell them the situaiton and see if they would allw us to handle it that way. Or send the employee a letter giving the choice to return by a day certain or submit a rsignation for personal reasons by that day through the mail. Enclose a copy of the resignation for signature and an "SASE."

That at least keeps the ability to return if he was released and assuming no job nexus to the allegations and no subsequent conviction that would render unsuitable for employment. But if you terminate for the unauthorized absence, I bet you have a practice or policy that would prohbit the emplyee from being rehired following any discharge (assuming it was properly based).

Question on Employee / Termination?

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