You’re driving into work and hear a radio report about a late-night accident caused by an alleged drunk driver. The driver is behind bars. When they say his name, you’re shocked. That’s Bill from marketing!
“This is a situation in which employers need to make a decision, and if they act purely on instinct … they may be making the wrong decision,” cautions Sean McDevitt, a partner with the Pepper Hamilton law firm.
How to respond? Here are five tips from McDevitt:
- Don’t talk to uninvolved third parties, such as the media or nonmanagement employees. You’re obligated to safeguard employees’ legal rights, including not harming their reputations. Disclosing unnecessary information could result in a defamation claim if the employee is later acquitted or the charges are dropped.
- Determine whether a contract or union ties your hands. Employment or union contracts may limit you from pursuing disciplinary action. An employment agreement may cite specific grounds for termination, and an arrest may not be one of them. Taking action against a unionized employee usually must satisfy a “just cause” standard in a bargaining agreement. If the union feels this standard hasn’t been met, it might file a grievance. This may be the case if the offense occurred outside of the workplace.
- Determine the seriousness of the offense. Employers are typically more tolerant of alleged crimes involving poor judgment. But they’re more likely to take disciplinary action against an employee accused of a more serious charge.
- Treat the arrested employee fairly. Be aware that co-workers will watch to see whether the employee’s rights were protected, and if all the facts related to the case were uncovered before any disciplinary decision was made. “Ultimately, employees are concerned about how they would be treated by if they are ever in the same situation,” says McDevitt.
- Get good legal advice. Making the wrong decision may result in a costly lawsuit, a disgruntled employee and even a demoralized staff.
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