What do you do when your employee is arrested?
Your company has a system that alerts management whenever a company driver has an infraction on a registered license. One report says that a sales representative was just charged with an DWI.
Your manager calls you to tell you that one of their staff has not shown up for work. Another employee in the department says that she heard the absent employee was arrested for possession of illegal drugs over the weekend. The employee continues to be absent that week.
One day, police show up at the workplace with a warrant for an employee’s arrest which includes seizing any mail the employee has received. They handcuff the employee and carried her away along with the company wastepaper basket.
What should the company do in these situations? Is it the employer’s responsibility to find out what happened? The most common question- Can we fire an employee who has been arrested? Can we fire an employee who is in jail due to a conviction for job abandonment?
If an employee is incarcerated, management should consult their workplace policies and then ask the following questions:
- First, is the illegal activity related to any of their job functions?
- With an arrest such as DWI, does it impact their ability to perform their job?
- Has the employee been convicted?
- Is the employee’s absence because they are attending a rehabilitation program?
If the employee calls to explain an arrest, we recommend the company representative use a nonjudgmental tone and discuss the situation that has just occurred. It’s important they stay focused on the company’s policies on tardiness, absences, and leave of absences. They should listen to what the employee says and make sure they understand the employee’s explanation. Depending on the crime, it may be wise to wait until a conviction to avoid legal trouble. Senior management must be notified and they can address any reputation management concerns. It’s probably a good idea to remind employees of the company’s social media policies.
HR is best suited for employee relations to avoid the potential risks and liabilities of not adhering to reasonable accommodations. The ADA and FMLA protects certain employees dealing with substance abuse problems. The organization should be prepared to allow the employee to return to work once any documentation received supports the need for such accommodation.
In the case of the DWI employee, his job essential duty was driving to customer meetings. The company needs to consistently enforce policies that require a valid driving license and the company’s right to perform reasonable suspicion testing for substance abuse.
Although alcoholism is a disability under the ADA, don’t just assume the employee has an established diagnosis. There are many steps to take before providing accommodations. Under ADA, employers can require the employee to meet the same standards of performance and behavior as other employees, with or without reasonable accommodation.
In the second case, we made sure the client had a good policy on job abandonment or “no call, no show”. Even then, the employer should be prudent in terminating employment. The employer should make good faith efforts to contact the employee, to ascertain whether the employee is incapacitated or if extenuating circumstances exist that justify the employee's absence without notice. Generally, this type of policy establishes the call-in procedures, outlines the employee’s responsibilities, and states the time limits for no call/no show absences. If the employee doesn’t notify the employer by the deadline, the termination process may begin.
If your organization has none of these policies, any past practice in this regard should be considered to ensure that equal treatment is given to all employees. When seeking information about the absence, the company representative needs to focus on the work missed and not the jail time. The point of the conversation is to find out when the employee will be able to return to work.
When an employee is arrested, having and following tardiness and absenteeism policies will save the day. Employers should document all unexcused absences and follow their own internal procedures every time. It also can’t hurt to train managers so they don’t take any actions without management’s knowledge.
Administering absenteeism policies fairly and consistently is an effective way to decrease liability with employee arrests. Employers also need to be prepared for the possibility of being embroiled in a crime. There was one case where the employee used the company’s technology to store and transmit child pornography. Authorities may need to seize more than the company’s wastepaper basket. If management feels the company or other employees will become involved, the company will need to consult legal counsel right away.