An employee has been arrested and charged with a crime. We would like to terminate. Would suspension be more appropriate?

First, it is imperative to point out a clear distinction exists between an arrest and a criminal conviction. Unlike convictions for criminal activity, the fact that an individual has been arrested or charged with a crime does not mean the person is guilty.

Employers have a justifiable business interest in learning about their employee’s off-duty conduct since some crimes could be an indicator of a probable workplace security or safety concern. The U.S. Equal Employment Opportunity Commission (EEOC) has taken the position that asking applicants about arrests is discriminatory due to the fact that minorities statistically tend to have a higher rate of arrests and convictions, and such inquiries on a pre-employment basis could result in disparate treatment of applicants who are members of a protected class.

However, the EEOC does not prohibit employers from taking appropriate disciplinary action up to and including termination when an employee has been incarcerated or convicted of a crime provided that such decisions are made as a result of a valid business interest and the employer’s policies or practices are applied in a fair and consistent manner to all employees.

Several options are available to employers for handling such issues when they arise. Employers that tend to experience a higher rate of arrested or incarcerated employees may wish to consider designing a policy that specifically addresses the employer’s position on arrested/incarcerated employees. Employers that do not wish to create a policy that specifically addresses this issue may instead choose to follow whatever policy or practice is currently in place for dealing with unexcused absences or approved leaves.

An employer should give some careful consideration to the items listed below when drafting and implementing an applicable policy.

• The nature of its business.
• The nature of the crime.
• The expected length of incarceration.
• Whether the criminal conduct has relevance to the job the individual performs.
• The policy should be reviewed by legal counsel prior to implementation and provide clear language relating to when off-duty conduct will result in a suspension or termination.  

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. Contact the Knowledge Center for more information.
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