It’s a question more employers find themselves asking today: “What should I do if one of my employees gets arrested?”
With a record number of Americans now in jail – almost 2.2 million in federal or state prisons – and crackdowns underway nationwide against drugs and drunk driving, among other offenses – more employers than ever are finding themselves unprepared to answer that question, according to Pepper Hamilton, a multi-practice law firm with 450 attorneys in Pennsylvania, New Jersey, Delaware, New York, Michigan, California, Massachusetts, and Washington, D.C.
“This is a situation in which employers need to make a decision, and if they act purely on instinct without consulting legal counsel, they may be making the wrong decision,” cautioned Sean McDevitt, a partner with Pepper Hamilton, LLP (www.pepperlaw.com).
Among the tips from Pepper Hamilton for employers who may be confronted with the arrest of one of their workers are:
· Don’t act without getting good legal advice
. “Before making any decision on the worker’s job status, employers should first consult counsel and consider all available options,” said McDevitt. “It’s important that employers be aware of their employees’ rights, and always act in accordance with them. Making the wrong decision may result in a costly lawsuit, a disgruntled employee, and even a demoralized staff.”
· Don’t talk to uninvolved third parties
, such as the media or non-management employees. “Employers are under an obligation to safeguard an employee’s legal rights, including not harming their reputations,” said McDevitt. “Employees who do not have supervisory or decision-making status shouldn’t be included in discussions related to an employee’s arrest. Unnecessary disclosure of information could potentially result in a defamation claim if the employee is later acquitted or the charges are dropped.”
· Determine whether the employee is covered by an employment agreement or a union contract.
“Employment or union contracts may limit an employer from pursuing a termination or other disciplinary action. Where the arrested employee has an employment contract limiting the grounds for termination or the employee is covered by a union contract, the agreement’s terms must be checked carefully. An employment agreement may have very specific reasons for termination, and an arrest may not be among them. Taking action against a unionized employee usually must satisfy a ‘just cause’ standard in a collective bargaining agreement. If the union feels this standard has not been met, it might file a grievance and ultimately take the case to binding arbitration, creating a financial exposure for back pay and reinstatement,” said McDevitt. “This may well be the case if the alleged offense occurred outside of work and on the employee’s own time.”
· Was the alleged offense major or minor?
“Companies may be more tolerant of alleged crimes involving poor judgment, such as a recreational drug possession type of charge,” said McDevitt. “However, an employer may be more likely to take disciplinary action against an employee accused of a more serious charge involving violence or crimes of planning and calculation, such as dealing drugs or robbery.”
· Are you a big business or a small company?
“Bigger businesses are more concerned than mom-and-pop enterprises with the impact an employee’s arrest may have on their brand identities and reputations, and therefore, will be more likely to impose a zero-tolerance policy,” said McDevitt. “Conversely, small businesses – where owners are traditionally closer to their employees and where staffing might be leaner – may be more supportive of the accused employee.”
· What potential impact will the arrest have on the rest of your workforce?
“Co-workers may be reluctant to work next to someone accused of a violent or other serious crime,” said McDevitt. “Some businesses may not want such a person selling their products or interacting with their customers.”
· Was the arrested employee treated fairly?
“Management must always be aware that other employees are closely monitoring the situation to see how it is being handled. They will be watching whether the employee’s rights were protected, and if all the facts related to the case were uncovered before any disciplinary decision was made,” said McDevitt. “Ultimately, employees are concerned about how they would be treated by management if they are ever in the same situation.”
About Pepper Hamilton
Pepper Hamilton LLP (www.pepperlaw.com) is a multi-practice law firm with 450 lawyers in seven states and the District of Columbia. The firm provides corporate, litigation and regulatory services to leading businesses, government entities, nonprofit organizations and individuals throughout the nation and the world. The firm was founded in 1890.