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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.  

© 2018 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.


About this 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...