Avoiding Legal Pitfalls When Employees Are Arrested Off Duty

Quick Hits

• Employers may have to deal with workflow or staffing issues, or even reputational harm, when an employee is arrested for an alleged crime while off duty.
• A workplace investigation may be needed in some cases to decide the proper disciplinary action.
• State laws, employment contracts, union contracts, and employee handbooks may play a role in determining any disciplinary action.
  

One of the first steps an employer can take after an employee is arrested is to assess whether the conduct violated professional ethics rules, the employee handbook, or the union contract. Many employers stipulate in their employee handbooks or union contracts that employees must act in an ethical, professional, and respectful manner toward coworkers, clients, and customers. An employee who lied about an arrest or failed to inform his or her supervisor about an arrest may have committed a violation of corporate policy.

In some cases, the handbook specifies that workers can be disciplined or fired for off-duty behavior that causes reputational harm to the company. But what does that really mean? Is an arrest for petty larceny treated in the same manner as an arrest for an incident of driving under the influence that resulted in property damage? Does the degree and type of crime change the analysis?

The advent of social media has dramatically increased the risk that an employee’s off-duty misbehavior could cause a public relations crisis for a company. In recent years, there have been some well-known examples of individuals who were fired after a video went viral on social media channels, showing an incident like road rage or assault. However, not all bad behavior rises to the level of a crime, and individuals accused of a crime are considered innocent until proven guilty. Therefore, employers may want to exercise caution when an employee has not been convicted of a crime yet.

After an arrest, an employee might miss work if he or she is in jail or court. A supervisor may have to shift work assignments or schedules in the meantime. The absence could be treated as personal time off or unpaid leave. Employers may want to ensure that they apply their absence and paid leave policies consistently to avoid discrimination and retaliation claims.

If an employee is arrested, a workplace investigation may help an employer uncover any misconduct at the workplace that wasn’t previously reported. Depending on the circumstances, the employer could decide to take no action, suspend the employee without pay, put the employee on administrative leave with pay, or discharge the employee.

When deciding whether to discipline or discharge an employee, the employer may consider whether the alleged crime is relevant to the job duties or type of job. For example, if a bus driver or truck driver is arrested for reckless driving or driving while intoxicated during off-duty hours, then the employer could argue that the alleged crime conflicted with business necessity. However, a computer programmer’s arrest for property damage might not be considered job-related or connected to business necessity.

Another factor to consider is the amount of public interaction the job requires. For example, jobs in sales, customer service, and teaching are public-facing, meaning those employees often serve as the face of the organization. Those cases might call for a different approach than employees in internal roles who don’t interact with the public.

State Laws Vary

All states, except for Montana, have at-will employment, meaning an employer can discharge a worker without cause. However, in some cases, a union contract or fixed-term contract may govern the conditions under which an employee can be discharged. If so, an employer might have to show just cause for terminating employment.

Some states have laws prohibiting employers from disciplining or discharging employees for lawful off-duty conduct, but this protection does not extend to criminal behaviors. Antidiscrimination laws prohibit employers from treating criminal history information differently for different employees based on their race, sex, national origin, and other protected characteristics. However, having a criminal record or an arrest generally is not considered a protected characteristic in most states. A company could be held liable if it falsely states that an employee was involved in a crime. State laws on defamation vary.

Next Steps

Employers may want to be careful about what they disclose in internal or external communications after an employee has been arrested. Employers may also wish to discourage gossip and restrict who is involved in meetings about the arrest in order to avoid allegations of defamation, particularly if there has not been a conviction yet.

Furthermore, employers may wish to apply their absence policies and standards of conduct consistently to prevent discrimination and retaliation lawsuits.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law and Workplace Investigations and Organizational Assessments blogs as new information becomes available.

Sarah W. Walsh is of counsel in Ogletree Deakins’ Boston office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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