April 19, 2014

Innocent Until Proven Guilty, But Employed, Too? How to Handle Employee Arrests

Employers routinely encounter employee situations that leave them in a bind: illness, pregnancy, or the rogue employee who walks out without notice. There is also another situation that can leave employers scratching their head and calling the HR department: what do you do when an employee is arrested?

Before any impulsive action is taken, consider these factors:

  • Is the arrest for a serious crime or minor offense?
  • Is the employee high-profile, high level? Or, are they lesser known (and thus less likely to draw attention for the arrest)? 
  • How does it relate to the employee’s job duties and how will it impact business?

If an immediate response is needed because of one or all of the factors above, you can place the arrested employee on inactive status or suspended status without pay. If such swift action is unnecessary, you may also consider treating an arrest or incarceration as an absence. In this scenario, the absence would be considered unexcused and you could apply existing company rules so that exceeding the number of allowable absences is subject to suspension or termination. If using this option, you will also have to decide if the employee can draw on vacation or sick days.

Another option is to have a general policy that allows employees to take an unpaid personal leave for a justifiable cause. The policy should specify the maximum leave time and state justification will be determined by the company on an as-needed basis.

Because employee arrests are (hopefully) a rare occurrence, there may be no specific policy on how to deal with them, or subsequent convictions. If you do choose to draft a policy on the subject, the EEOC’s guidelines on pre-employment inquiries regarding arrest and conviction are a good starting point. It is always sensible to require employees to report any arrests with documented proof of the charges (i.e., a police report) so that the offense(s) cannot be downplayed. In addition, you will want to keep information confidential, not only for your business’s sake, but also for the employee’s right of privacy. Also keep in mind the concerns and safety of your workforce. The integrity and security of the office environment should always be of highest concern.  

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

About the Author

Preston Clark Worley, Labor Law Attorney, McBrayer Law Firm

Preston Clark Worley is a native of Richmond, Kentucky and proudly calls Central Kentucky home. After graduating from the University of Kentucky and the University of Kentucky College of Law, he joined McBrayer Law Firm as an Associate in 2010. He enjoys a diverse practice in several areas of real estate, transactional, litigation and administrative law. Mr. Worley has represented his clients by brief or in person before various trial courts throughout the Commonwealth and the Federal Eastern District of Kentucky, the Kentucky Court of Appeals, the Kentucky Supreme Court, Executive and...


Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.