Issues Concerning Arrested/Incarcerated Workers
An employer may find itself in the position of determining the employment status of an individual who has been arrested or incarcerated. It is essential that whatever policies are in place or drafted are applied consistently and fairly.
Options. Depending upon the employer’s policy and past practice, there are several options the employer may use.
The employer can consider handling the situation as an absence issue.
A company policy may treat such an absence as unexcused and apply a rule stating that any employee with more than the mandated number of unexcused absences may be subject to suspension or termination.
Another approach might involve the company’s leave of absence policy. An employee may be allowed, under this policy, to apply for a leave without pay subject to company approval, depending on the length of the term of imprisonment.
The employer may have to consider whether or not the employee is eligible to draw on earned vacation time as with any other absence. Again, a policy should be in place, and the employer can use its discretion in applying those existing policies to the situation, so long as similar situations are handled consistently.
Specific policy concerning arrests/incarceration.
Depending on the prevalence of arrested or jailed workers and/or the nature of the business, the employer may wish to draft a specific policy.
Such a policy might state that an employee unavailable for work due to incarceration for a certain number of days will be put on an inactive, suspended or terminated status. In defining the status, the employer will also want to address the option of offering the employee work upon release, if such work is available.
Address arrest vs. convictions.
An important distinction to be made in drafting this policy is that of the arrested versus the convicted. An EEO issue may arise since minorities are typically arrested more frequently than nonminority groups. Therefore, it may be preferable to place arrested persons on inactive or suspended status and convicted persons on terminated status, as long as a clear and justifiable conflict between their job function and the nature of their offense exists. Further, there is an assumption of innocence until proven guilty under the U.S. Constitution. While private employers are not, as a general rule, held to the standards of the Constitution, a sense of fairness and internal goodwill may dictate suspension instead of termination.
Other procedures included in the employer’s policy might mandate that the employee immediately report the arrest to the supervisor, that the employee be required to submit a police report or other documentation concerning the arrest and charges to the employer, and that the employee be required to comply with those requirements within a certain time frame, with noncompliance being grounds for termination.
Upon submission of the report, if the employee has in any way lied or misrepresented the circumstances of the arrest, the employer may want to institute that as grounds for dismissal.
If an employee reports an arrest for nonpayment of child support, but documentation reveals that the employee was actually arrested for armed robbery, the employer may dismiss the employee for lying to a company official, so long as other employees have been terminated in similar circumstances.
However, the employee’s misrepresentation of the reason for absence may not, in and of itself, be considered just cause for termination.
If the charge has any bearing on the employee’s function within the company, the employer may wish to terminate the employee.
If an employee is arrested for rape and that employee’s job allows for public contact in isolated areas, such as parking lots, then the employer may dismiss the employee, so long as the policy is consistently applied.
The connection between the offense and the employee’s job function is a consideration in most court and arbitration rulings.
In an instance where the employee is charged with an offense but professes innocence, it may be advisable to place the employee on suspension without pay for the duration of the legal proceedings to and provide for reinstatement upon acquittal.
Whether the employer draws from an existing policy or drafts a separate one, it is most important that the policy be applied with equity and fairness, while taking into account special factors and circumstances that relate to each individual situation.
When drafting, revising or updating any policy, managers should review the policy to determine whether or not the policy should exist or be retained in its present form, past practice and emerging trends that effect the policy and its implementation.
Reposted with permission from Wolters Kluwer.
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