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Ask the Hotline | How Do We Address Employee Arrested for DUI?

November 18, 2019
Q. One of our employees was recently arrested driving under the influence (DUI). She is likely to be sentenced to the house of correction because it is her third DUI arrest since she began working here three years ago. She’s otherwise been a pretty good employee. She doesn’t drive for us and she has been able to get to work by public transportation. Is there anything special we should do?
A. It seems clear that she has not been sentenced yet. That means she is likely still out of jail and may want to come to work. Given that you state that there is no connection between the arrest and what she does for your company (i.e. she doesn’t drive for you), the company has a number of options it may elect to pursue. 
There are several points to keep in mind:
  • You are not addressing any pre-employment Criminal Offender Record Information issues because in this case the employee is already working for you.
  • The action you decide to take will serve as a marker if the situation ever happens with another employee. The importance of that you do not want to appear to be engaging in discriminatory practices based upon the arrested person in any protected-class status. 
In situations where an employee is arrested or convicted of a crime serious enough to result in some level of imprisonment affecting the employee's ability to do the job, there are options that may include an absence or a personal leave. 
When an employee loses time from work due to being incarcerated or arrested, an employer may decide to handle it as an unexcused absence. This is probably more effective in the case of someone being arrested and out of work for a day or two rather than a case involving someone who had been convicted and sentenced for any significant amount of time. 
Using an option like this may be reasonable when the company has never dealt with the person missing work due to an arrest or conviction. And since you don’t mention that she has missed time from work previously, I’m assuming that her previous arrest did not result in time off. 
If you decide to let the employee count the time as an absence, consider the following:
  • Decide whether the employee will be able to draw on any vacation time, if applicable.
  • If the employee’s incarceration leads to more paid time off/vacation time in prison than the employee has available inform the employee that those absences may lead to suspension or termination.
Personal Leaves
Some employers have a general personal leave policy in their handbooks. 
As the employer, you will have to decide if whether serving time in jail constitutes a valid use of the policy. One thing to bear in mind is that if an employee requests and receives a leave under this policy and that time in the house of correction/prison is for a permitted amount of time under the policy the employee is likely to expect to be able to return to work. That means that any decision you make regarding the criminal activity under this policy, may well have implications for future cases of a similar nature.
Arrest/ Incarceration policies
Some employers may want to consider developing an arrest and incarceration policy. Any policy should be tailored to the particular company but some of the universal themes should include: 
  • The employee must report the arrest to HR within a certain timeframe;
  • The employee must provide any necessary supporting documentation;
  • Non-compliance with the policy is a basis for termination;
  • Misrepresentation of the circumstances of the arrest is also a basis for termination. 
Direct link
If there is a direct link between the employee’s duties at work and the arrest or conviction, consider:
  • placing the arrested employee on inactive or suspended status without pay;
  • providing for reinstatement upon acquittal;
  • requiring automatic termination if an employee is convicted.
Consider all of the employee’s duties in light of the crime of which the employee is accused. Does the employee interact with customer? Does s/he work alone in isolated parts of the area and may encounter a vulnerable person? Does s/he represent your organization in a public capacity?
Document all decisions and the reasons your company made those decisions.
Dealing with an arrested or convicted employee can be upsetting for the parties involved, especially if it becomes public or is reported in the local media. Taking time in advance to think through how to handle this issue can minimize some of the stress associated with this issue.
AIM members with questions about this or any other HR-related issue may call the AIM Employer Hotline at 1-800-470-6277.
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