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Can we fire employee because he was arrested?

by on
in Firing,Human Resources

Q. An employee called out for one day because he’d been arrested on a domestic violence charge. He did not violate the attendance policy. This man has been rumored in the office to be an abuser, and the police have been called to his home other occasions. He is an at-will employee. Can we realistically fire him if he’s broken none of our rules? — Paul, Florida

A. Yes, you can. The essence of at-will employment is that you can terminate anyone, for any reason or no reason at all, as long as it’s not an unlawful reason. Suspecting that a person is nasty to the people he lives with—even if you don’t know that to be the case—could reasonably make you think that this is not a guy you want to have around. The problem, of course, is that there are two sides to every story, and you don’t know the other side.

Now, to be clear, many states (not Florida) limit an employer’s ability to discipline or refuse to hire someone simply because they have been arrested. The facts underlying the arrest may be relevant in certain states and, in those jurisdictions, the employer should investigate further before making a decision about whether to take adverse employment action on the basis of the arrest. The public policies underlying these sorts of statutes include, first, the fact that minorities are arrested far more often than are whites and, second, the concept that individuals should be treated as innocent until proven guilty.

Of course, as this individual is already your employee, even if he belongs to a minority group, there is no reason to think any decision you make now would be affected by unconscious racial bias—you hired him, after all.

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