While an arrest may lead to a charge or conviction, it is not the same. An arrest does not prove that one’s conduct was criminal in nature. An individual is innocent until proven guilty. However, the act of the arrest itself should be investigated to determine what, if any, action against the employee is warranted.
The Equal Employment Opportunity Commission (EEOC) has guidelines to assist employers when reviewing arrest or conviction records. While the EEOC does not have the authority to stop employers from getting arrest or conviction records, they do offer guidelines to ensure the information is not used in a discriminatory manner. CLICK HERE to review the EEOC guidelines.
Human Resources should be made aware of the arrest as soon as possible in order to begin their investigation process.
Several factors to consider during the investigation are:
- How did you learn of the arrest?
- Is this a reliable source?
- Does the news affect the reputation of the company?
Make sure your source is valid. Hearing about an arrest on social media or around the water cooler may or may not be truthful or provide accurate information. Confirming the source is the first step in determining the course of action.
- Will this arrest result in an absence from work? If so, for how long?
- Do you allow employees to use PTO for this type of incident?
Review your attendance policy. If the arrest leads to incarceration, you’ll need to determine if the time away from work will exceed your attendance requirements.
- Can you relate the arrest to the employee’s job?
- Will the arrest affect a certification or license that the employee holds?
- Can you continue to employ the employee if such certification or license is suspended or revoked?
- Is the employee’s position safety sensitive or include working with children or money?
- Does the nature of the arrest violate a workplace policy, such as:
- Code of Conduct
- Drug-Free Workplace
If any of this information can be connected to the employee’s position at the company or includes actions that violated a policy and the result would have been disciplinary action without an arrest or conviction, follow your normal positive discipline procedures, which may include termination. CLICK HERE to review the EEOC guidelines on The Nature of the Job Held or Sought.
- Get as many details about the arrest from the employee as possible.
- Records of arrest are public knowledge and can be searched online.
- Use a third-party to conduct a background check (subject to the Fair Credit Reporting Act).
If you believe you’ll need time to process the information, you may suspend the employee, generally without pay, until your investigation is complete. Once you are aware of the details of the event, you can better determine how to proceed. The more information that is discovered, the easier it will be for you to make a decision about the employee’s continued employment.
An employee’s arrest may not warrant immediate termination. Perform a thorough investigation and decide on the consequences once you have reviewed all the facts.
See all of the EEOC guidelines on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
Should you have such a situation, members can call EAF and we can help you think this through, weigh the options, and mitigate your risk to the business.
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