An Employee has been Arrested

Buster and Sister · July 2003

We have an employee that was arrested for indecent behavior and attempted crime against nature. He did not report to us (the employer). We were notified by the on duty officer at the prison where he was charged. We also confirmed with the local authorities before confronting the employee. We placed the employee on suspension w/o pay pending the outcome of his upcoming trial.

What type policy do you have regarding employees that have been arrested?

ray a · July 2003

I've had a couple that I terminated using our 3 day, no report policy. In another case, the ee informed us of what happened and his family kept in touch. We told him we would hold his job only until his early release date. That gave him some incentive to be good while incarcerated. If his release date was extended due to bad behavior, then his job would be gone.

System · July 2003

I know you cannot fire someone for being arrested. Thye have not been 'convicted' of a crime yet. Your best bet is to do the 'job abandonment' and leave it at that.

sonny · July 2003

[font size="1" color="#FF0000"]LAST EDITED ON 07-30-03 AT 09:43AM (CST)[/font][p]I'm just curious, what is a crime against nature?

ray a · July 2003

My pinup picture.

Parabeagle · July 2003

We terminate under our three-day no-call/no-show policy. Just makes life a lot simpler.

ritaanz · July 2003

What did he do? Urinate on a tree? Remove his clothes and pick a flower?

Parabeagle · July 2003

Couldn't resist checking the Louisiana statutes (it's the old paralegal in me). Here's the definition of "crime against nature."

§89.1. Aggravated crime against nature
A. Aggravated crime against nature is crime against nature committed under any one or more of the following circumstances:

(1) When the victim resists the act to the utmost, but such resistance is overcome by force;

(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm accompanied by apparent power of execution;

(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or

(4) When through idiocy, imbecility, or any unsoundness of mind, either temporary or permanent, the victim is incapable of giving consent and the offender knew or should have known of such incapacity;

(5) When the victim is incapable of resisting or of understanding the nature of the act, by reason of stupor or abnormal condition of mind produced by a narcotic or anesthetic agent, administered by or with the privity of the offender; or when he has such incapacity, by reason of a stupor or abnormal condition of mind from any cause, and the offender knew or should have known of such incapacity; or

(6) When the victim is under the age of seventeen years and the offender is at least three years older than the victim.

B. Whoever commits the crime of aggravated crime against nature shall be imprisoned at hard labor for not less than three nor more than fifteen years, such prison sentence to be without benefit of suspension of sentence, probation or parole.

sonny · July 2003

Thanks, para. . Rita's is more logical if you ask me.

Shadowfax · July 2003

Unless you run a day-care or some service where you have ees involved with otherwise defenseless people, or, ees going into other's homes or something of that nature, I think you are on a slippery slope to even suspend w/o pay - pending outcome. I agree with other posters that the only safe thing to do is wait until ee misses the requisite # of days and let go on that basis. My guess is that this ee is out on bond and able to work between now and trial, and you may be adding up damages on a daily basis.

Whirlwind · July 2003

To avoid having the action you take connected to the arrest/incarceration status, I recommend following the normal policies and procedures you would apply whenever an employee must miss work unexpectedly for a "non-protected" reason (e.g., not FMLA, etc.). For example, if you had an employee suddenly need to leave town for an indeterminate length of time due to a family problem not covered by FMLA, what would you do? In my case, I would allow the employee to exhaust all applicable forms of paid leave, and then permit the employee to request extended leave without pay. Whether this request would be granted would depend on whether there was a business necessity to fill his position, but if it were granted it would be limited to six months at most.

If his legal situation is not resolved and he's still in jail (convicted or awaiting trial) by the end of the approved leave of absence, you would be terminating under a neutral attendance policy.

If he's convicted but not incarcerated and, therefore, theoretically able to return to work, you'd have to look at your policy on employing people convicted of crimes. For example, because we are a children's service facility, we don't hire anyone convicted of a crime involving sex, violence, or felony drug offenses.

The stickiest possibility, from my standpoint, is if he's out of jail but there's still no disposition on the alleged crime (i.e. out on bail awaiting trial). He's free to work, but you don't know whether he's a criminal or a falsely accused innocent person. In this case, you would have to make a judgment call based on your knowledge of the person and the nature of your workplace.

LindaS · July 2003

I agree with the previous posters that advised allowing the EE to work if he is out of jail. If not, follow your standard attendance policies as they would apply. As far as if a conviction is made, if he is sentenced to jail time I would not recommend granting a leave of absence and holding his job.

Don D · July 2003

...The "PRISON" where he was charged? What kind of backwards justice is that?

Balloonman · July 2003

Timely stuff........had two employees arrested this morning on a traffic stop. :-) Told the foreman basically that is was attendance but since one was charge with possession of narcotics for some roaches found under the seat I told him he cannot return to work until I get the results of the drug test I had him go take for probably cause.
If he is clean he is back to work. If not he lied to me about his drug use and will be terminated.
My $0.02 worth.
DJ The Balloonman

lmccoy · August 2003

I agree to follow the attendance policy on this one. A note of caution if you appeal UI in LA. I recently had an employee who had been with the company for three weeks. He called in saying his child ran away and he would be late because he was looking for her. He never called or came back. After three days we terminated for job abandonment, based on company policy. He called about a month later and wanted his job back, stating he had been arrested for stealing from his previous employer and was sorry he did not call in properly. He was denied. We appealed the UI and lost. One of reasons given by the administrative judge was that "it was not the employee's fault he could not call in while in prison" and we should have waived our call in policy and reinstated the employee. I'm just waiting to see if we get a wrongful termination suit now.

Good luck

sonny · August 2003

Good Grief. . and who's fault was it that he was there in the first place? Some of these stories are unbelievable.

Crout · August 2003

It reminds me of the time an employee requested a one-month medical leave to have an operation, and while we were waiting for the medical forms to come back I got a phone call from the county prison. They wanted to begin the arrangements for work release for our employee, who was serving a....you guessed it...one-month sentence for passing bad checks. We fired him for cause...submitting fraudulent documentation, and were astonished when the Philadelphia UC office actually agreed with us. Sometimes there is justice.

An Employee has been Arrested

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