Approximately 0.7 percent of people in the United States are currently behind bars, according to Prison Policy Initiative. One of the phone calls or messages that employers don’t want to receive is news about their employee landing in jail. If you’re a business owner who finds out that one of your staff is in the slammer, you’ll need to think carefully before deciding the employee’s job status.
Not sure what to do once you hear the unfortunate news of employee incarceration?
Take note of these suggestions:
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Panicking and making a rash or uninformed decision is one of the worst things you can do. The last thing you want to happen is to do something that clearly breaks the labor law and result in an expensive lawsuit. You don’t want to go there.
Remember that everyone is innocent until proven guilty. Just because there’s an arrest made by a police officer doesn’t mean that the employee committed a crime.
Talk to Your Employee
The good news is that there are no federal laws that prohibit a business owner or employer from inquiring about the arrest. You, therefore, should take steps to allow the employee to explain the situation.
Perhaps the arrest was a “wrong place in the wrong time” kind of situation. The arrest could also be a little more serious. Whatever the answer is, you need to gather all the facts before making a decision. Obtain information about the arrest, possible charges, circumstances and the immediate future of the employee.
If your employee can obtain bail from a reputable bail bondsman, then that’s good. You can ask about their arrest once they get out of jail.
On the other hand, you may need to depend on other sources of information if your worker is still in jail and doesn’t have the means to get bail.
The best source of info you should look at would be the arrest record. You don’t have to secure clearance or permission to get this public record. Just go to the police station or the local courthouse to obtain the details you need.
Keep the Information on the Arrest on a “Need-to-Know” Basis
Don’t let uninvolved parties, non-management employees or the media know about the arrest of your staff member. Instead, consult your attorney once you’ve learned about the unfortunate incarceration.
Companies have a responsibility to protect the legal rights of an employee. This includes making sure that no harm comes to the reputation of the employee. Employers should not include employees with no decision-making or supervisory status in discussions related to the arrest.
Your goal as a business owner is to avoid unnecessary disclosure of information. When you leak the news of an arrest, this could potentially lead to a defamation claim, especially if the police drop the charges or the court acquits the employee.
Treat Incarcerations and Arrests as Absences or Personal Leaves
When a member of your staff loses time from work due to arrest or incarceration, you may decide to handle this situation as an issue of absence. Consider this your best bet, especially if arrests aren’t common in your workforce or you don’t have many employees.
Treat absences due to incarceration as unexcused. Then, apply an existing rule stating that a worker who goes beyond the limit of unexcused absences may be subject to suspension or termination.
If you do choose to treat the arrest as absence, decide if the worker can draw on any vacation time, if applicable. You could also permit the worker to apply for leave without pay, which will be subject to approval. Take note that your decision will depend on the length of the imprisonment. This, of course, implies that the worker can return to work after release.
Another option you could look at is coming up with a general attendance policy that enables employees to take personal leave without pay for a justified cause. This is likely a most useful way to resolve the situation, especially if you only have a few workers and don’t expect this kind of problem to happen regularly.
Here’s an example statement of a generic personal leave policy: XYZ Company may grant you an unpaid personal leave of absence of up to (state length of time here) for a justified reason. XYZ Company will determine if this justification is valid.
Strive for Fairness
Ask yourself, “Was the arrested worker treated fairly?” Management should be aware that employees who do know about the arrest of their fellow workers are monitoring the situation closely. These employees want to know how your business is handling the situation. They’ll also be watching if you’re safeguarding the incarcerated employee’s rights and you’ve uncovered all the facts before handing out the disciplinary action.
When you hear about the arrest of your employee, don’t take any action you may regret. Follow these steps to avoid making a decision that will result in a lawsuit, a disgruntled worker and a demoralized workforce.