Boss, I’ve Been Arrested’ Dealing with an employee charged with a crime

by: Robert C. Goldberg, general counsel for the Business Technology Association

You learn from one of your employees, a third party or the local authorities that an employee has been arrested during off hours. He (or she) is currently incarcerated and unable to report to work. Deciding the proper steps to take after learning this information is complex.

Can you terminate an employee based on an arrest? Generally speaking, the answer is “no.” Being held in custody prior to being convicted or having to leave work in order to attend one’s trial will not generally be regarded as sufficient grounds for a person to lose his job, assuming he has been forthright about his situation with you.

There are, however, exceptions to this rule if an employee’s alleged off-duty conduct negatively impacts the workplace. Prior to terminating the employee, you should conduct an investigation and effectively demonstrate that the employee’s continued employment represents a serious and immediate hardship to business interests.

Guilt or innocence is irrelevant. Assume that the employee did not do what he is alleged to have done and focus instead on the risks associated with the allegations. Will the employee’s presence in the workplace while awaiting trial create a reasonably serious and immediate risk to your legitimate business concerns? How will other employees react to the individual being in the workplace? Will customers object?

An employer must demonstrate that it investigated the matter to assess the risk of allowing the employee to remain in the workplace. Make sure to record all steps of the investigation. It is possible an employee will decline to cooperate on the advice of criminal counsel not to discuss the matter until the charges are resolved. If this is the case, make sure you record in detail that the employee declined to provide any information on the allegations. Court records are public documents and should be reviewed for information. While there is no exhaustive list of what constitutes a reasonably serious and immediate risk justifying the removal of an employee, case law reflects three broad areas that constitute risk: (1) potential harm to a company’s reputation; (2) potential harm to other employees or a company’s customers; and (3) criminal charges or bail conditions that render the employee incapable of performing his duties (e.g., incarceration, suspension of driver’s license, curfew, loss of security clearance or a no-contact order with a certain person or demographic).

If you are concerned about the employee dealing directly with the public but you have the ability to move him to a non

customer-facing role, you are obligated to do so. Similarly, if the employee is restricted from being within a certain distance of a coworker and you are able to relocate him, you must do so. You do not have to create work for the employee and you do not have to take work away from other employees to meet this obligation. However, if there is a way to accommodate the work while reducing concerns, it is your obligation to implement such an arrangement.

Even once you have made a decision, you have an ongoing obligation to consider new facts or circumstances as they come to your attention, which may require you to change your original decision. In order to help you meet this obligation, it is advisable to make a written request to the employee that he notify you about any further developments that may arise in the criminal matter.

Dealing with an employee who has been charged with criminality is a matter of utmost sensitivity. It is critical for employers to ensure they do their due diligence in taking all of the necessary measures to assess the situation and arrive at a reasonable decision. If you have questions, the BTA Legal Hotline is always available to help. n Robert C. Goldberg is general counsel for the Business Technology Association. He can be reached at robert.goldberg@sfnr.com.

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