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Dos and don’ts when an employee is arrested

You’ve just received notice that an employee has been arrested. A local news outlet is calling to confirm the person’s employment history and the employee rumor mill is already active. Now what?

First consult legal counsel, inside or outside your company. If the incident is mishandled, you run the risk of defamation or discrimination claims. Your attorney can advise you on next steps.

Pay attention to the following:

Don’t make assumptions. Remember, an arrest is simply an accusation. It is not proof of wrongdoing. Knee-jerk reactions can cause bigger problems down the road, particularly if the employee is later cleared. Allow the person a chance to explain. If desired, conduct an internal investigation to determine if the information the employee provided is reliable.

Manage information on a need-to-know basis. Exercise caution in how you gather information and be careful not to spread misinformation. Only employees with supervisory or decision-making roles should be included in conversations regarding an employee’s arrest. Unnecessary disclosure could lead to a defamation suit if the employee is found innocent or the charges are later dropped.

Determine impact on the employee’s job. An employer can make employment decisions based on the conduct underlying the arrest if it makes an employee unfit for the position. For example, an arrest for a DUI does not relate to someone’s duty as a receptionist, but it may warrant termination for a bus driver or a delivery driver. Meanwhile, an arrest for check fraud would be relevant to someone involved in an accounting or money-handling functions.

If there is a clear and justifiable conflict between the nature of the employee’s job and the alleged offense, you may want to put the employee on suspension during an investigation. Alternately, it may be appropriate to move them, at least temporarily, into a less public role.

Remain consistent. Make sure any employment actions you take are consistent with how other employees with similar arrests and similar job functions have been treated.

Consider policies addressing arrests. Some employers maintain specific policies for instances of arrest and incarceration. Under such policies, you may require that an employee report an arrest, and that misrepresentation of the circumstances can serve as grounds for dismissal.

Be aware, however, that a policy that automatically suspends or terminates an employee after an arrest may run afoul of Equal Employment Opportunity Commission laws. Make sure you understand what’s allowed under federal law and the laws of your state and/or local municipality.

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