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Don’t retaliate against employee who is arrested; await case result

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in Human Resources

When dealing with employees who've had brushes with the law, remember that a big difference exists between "arrests" and "convictions."

It's clear that you can fire employees convicted of crimes. But before you take any action against those who are arrested but not yet convicted, consider the relationship between the charge and the job. Determine if a clear relationship exists between the job function and the nature of the offense. (For example, a shoplifting charge would be related to an accountant's job.)

If an employee's arrest relates to his or her job, adopt this strategy:

1. Place the worker on suspended status without pay.

2. Explain that reinstatement can occur upon acquittal.

3. Plan for termination if the person is convicted.

Finally, as this following case shows, when employees are arrested but haven't had their day in court, don't retaliate against them for refusing to talk about the pending case.

Recent case: A driver for a municipality was arrested for misdemeanor marijuana possession. His employer learned about it in the local newspaper.

The city suspended the driver and tried to question him about the arrest. But the driver refused to answer any questions because his criminal case was pending, and he didn't want to incriminate himself. The city refused to delay its questioning. It fired the worker for violating its drug-use policy.

The driver filed suit, alleging the city violated his constitutional due-process rights. A federal appeals court sided with the driver, saying the city violated his right to procedural due process because the employee was "effectively forced to choose between his job and his Fifth Amendment rights." (Franklin v. City of Evanston, No. 03-2127, 7th Cir., 2004)

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