Innocent Until Proven Guilty? What Should a Company Do When an Employee Gets Arrested?

In another life, I worked as a criminal defense attorney. At every trial that I handled, I reminded the jury that under the law in America, every person charged with a crime is presumed innocent until he or she is proven guilty beyond a reasonable doubt (or he or she takes a plea deal and admits guilt). However, whenever I read comments to news articles announcing the arrest of some suspected criminal, I see that there are a number of people who seem to skip right over that presumption. What about the employer of a criminal suspect who has been arrested but not convicted of a crime? Should the employer take any action against that employee?

It depends on the circumstances. Every case is different, and therefore, there is no one size fits all approach to this type of situation. Some of the considerations:

1. What is employee charged with? How serious is the charge? Has the employee been trouble before?
2. Is the employee still in a probationary period? If there is any concern about a pending criminal charge, and the employee is still in the probationary period, this may be the best time to terminate the employee, if that is what the employer wants to do. However, the employer must be consistent in its treatment of employees in similar situations, as noted below, so that a termination does not result in a charge of discrimination.
3. How has the company treated employees in the past who have been in similar situations? Inconsistent treatment of employees, especially where the inconsistencies appear to be due to race/gender/age or other protected characteristic, could lead to a charge of discrimination.
4. Does the employee have a written contract of employment? If so, does that contract address reasons for termination? If there is no contract, then he/she is an at-will employee, and the employer can terminate the employee at any time for any reason (as long that reason does not violate other state or federal employment laws).
5. If the employee has been arrested for possession of illegal drugs, there is a possibility that the Americans with Disabilities Act can come into play if the employee claims to have an addiction problem and seeks treatment.
6. How does that charge impact his/her ability to do the job? For example, if the employee is charged with DUI and driving on behalf of the company is one of his/her job responsibilities, does the employer continue to let the employee drive while the charge is pending? If the employee is charged with a theft crime, and he/she is in a position of trust with the company, can the employer trust the employee to perform his/her job properly?
7. How does the charge impact the workplace? For example, if an employee is charged with domestic violence, will he or she pose a risk of violence to the workplace? To answer this question, the employer should try to obtain a copy of the police report. Was this an isolated instance, or is there a history of violent behavior? Is there a restraining order in place? (and if so, does the victim work for the same employer?). Was there a weapon involved? If the employee is arrested for a crime of violence, does this person have a job where he/she interacts with vulnerable populations?
8. How does the charge reflect on the company? For example, if a high-level executive is charged with a serious crime like possession of child pornography or rape, it is probably not in the company's interest to retain that executive, even if he/she has not been convicted.
9. The easier case is the employee who spends over three days in jail and fails to call or show up to work during that time. If the company has a three days no-call/no show rule that calls for termination in that circumstance (and most do), then the employer can terminate that employee, if the employer has been consistent in applying that rule.

A company must consider the possibility that it could be held civilly liable for the actions of an employee if the company knows that the employee has a history of performing bad acts (which may include acts that precipitated an arrest), the company retained that employee after the arrest, and the employee committed another bad act while on company time or property. In that case, the presumption of innocence may not be enough to shield a company from a lawsuit.

As the above discussion indicates, dealing with the arrest of an employee is a complicated situation that has many variables. It is recommended that a qualified employment attorney be consulted to minimize the company's potential liability.