Friday, August 29, 2014

How to handle employee arrests

Getting arrested is probably not on anyone's bucket list, nor is it likely to be anyone's favorite topic for conversation in the break room during lunch time. People make mistakes because they are people. No one is perfect.

While everyone hopes they won’t be involuntarily wearing shiny cuffs, sporting orange or brown county-assigned clothing, or spending time away in the “all-inclusive” county “resort,” the fact of the matter is sometimes it happens (a word of advice: to avoid this experience, don't break the law.)

I am sure if you were able to watch the thoughts of someone who has just been arrested there would be a jumbled mess of "what if" and "what will" questions flashing across the screen. One of those "what will" questions is likely "What will happen to my job?"

To be honest with you, when an employee is arrested an employer is faced with a similar question: "What will we do now?" On the employer side there are many more questions that follow and there really aren’t easy answers or set ways for an employer or employee to respond.

On both sides it is important for there to be a level of honesty. As an employee, it's better to be up front with your manager instead of your manager finding out from a background check, court disposition or surprise phone call from a friend or family member. In the past when I have worked with employees who have been arrested I have given them a certain level of flexibility and tried to work with them if they have been up front with me. It is probably one of the hardest conversations you will ever have with a manager, but it could save your job. On the employer side it is also important to let the employee know that it will take time to consider and review what the company will do, based on company policy, liabilities, and other factors. It is also best practice to be honest in giving the employee a timeline for when they might expect a decision.

Easy enough and it all works out after that, right? Well, not quite. This is actually where it gets very complex on the employer's side. If an employer does not have a carefully outlined policy stating what an employee has to do if they are arrested and what types of arrests and/or convictions result in disciplinary action, the door is wide open to all sorts of confusion. The best practice is to get a policy in place but it is a very cloudy area to explore and should be reviewed thoroughly by an HR professional or legal adviser.

Most small-to-medium-sized employers haven’t implemented policies that clearly state what should be done, so when an employee is arrested it can be very complex.

Any arrest should be individually considered. Some factors to consider include the offense the employee has been charged with, how long the employee might be incarcerated if convicted, and what relationship does the arrest have with the employee’s job. Without considering these factors individually and determining in advance what steps can be taken (disciplinary action, termination, etc.), employers run the risk of being accused of wrongful termination or discriminatory practices.

If an employee has been charged with a serious crime, you may want to adopt a standard policy under which the person is automatically suspended (paid or unpaid) pending the outcome of the case. If the employee is exonerated or if the charges are dismissed, he or she may be reinstated (require documentation from the courts). If the employee is convicted, terminate employment.

Employers also have to be mindful that the steps and actions they take with the arrest of one employee have to be consistent should another employee be arrested down the road. Employers “picking and choosing” -- e.g. "Johnny's a good guy and just made a mistake getting a DUI, but Josh is a jerk so we're using his DUI as a reason for letting him go" -- leave the door wide open for being charged with discriminatory practices.

Arrests of employees should be handled carefully to ensure the employee and the situation are being handled in a fair and non-discriminatory manner. Additionally, employees should be aware the employers have to make decisions based on business needs, being mindful of the risks and liabilities arrests, convictions and incarceration can have.

Monica Bitrick is the CEO of Bitrick Consulting Group, an Idaho Falls human resources company.