Small Business Brief


Arrested Employment: What Are Employee’s Rights of Employment After Incarceration?

A staggering 465,000 people were held in jails without conviction in 2018. Whether they were awaiting sentencing or were simply unable to make bail, this incarcerated time often has lasting consequences.

Employers face a difficult choice when a worker is arrested and jailed. Managers and business owners must decide on how to deal with the worker’s employment after incarceration. It is their responsibility to balance worker rights with the potential impact on the workplace.

While not a situation most employers will encounter often, it’s crucial to have a policy in place about such circumstances. Are you crafting an employee arrest and incarceration policy? Read on to know what you need to consider.

Work Absences

Treating an arrest as an absence may be beneficial in some scenarios. An absence could count toward your existing attendance rules, like a three strike rule.

Familiarize yourself with employment laws in your state. In at-will states, for example, you are within your rights to terminate employment at any time as long as the reason is not discriminatory.

Absences could be given personal leave without pay, or apply toward vacation time. Many workplaces allow approved personal leave with a justified cause. Depending on the circumstances of the arrest, this could help you keep an employee you don’t want to lose.

Hopefully, your employee or their loved ones will take the steps outlined in this article to collect information on the arrest. What if an employee is unable to contact you? Will you accept an absence report from a friend or family member about their arrest?

Severity of Crime

Consider the reason for arrests when crafting your workplace policy. Even if you allow personal leave to cover incarceration, there are some infractions which may compromise their employment eligibility.

If the crime is in direct conflict with the nature of the job, it may be better to suspend the employee without pay until the case is resolved. You can then reinstate the worker if they are acquitted, or terminate their employment upon conviction.

If an employee is pending trial for an assault charge, for example? Removing them from the workplace until the verdict will safeguard your employees and customers. An employee arrested for missing child support may not warrant such action.

In general, any accusation of violent crime should be treated with the utmost caution. It is irresponsible to expose your clients or coworkers to someone who has been accused of violent action. Civil infractions, moving violations, or other non-violent crimes may be grounds for an absence or personal leave allowance.

Whatever your decision, document the differences carefully in your work policy. At all times you must protect the privacy and reputation of your employee. Protect yourself by not sharing the specific circumstances for their absence or termination. 

Consistency Is Key

Any course of action you take should be consistent for all employees. Following a written procedure allows you to avoid any accusations of discrimination. It helps to include provisions such as:

  • Employees must report any arrest
  • Employees must submit any police documentation for review
  • Falsifying reason for arrest is grounds for termination
  • Crimes directly related to employment responsibilities will result in termination
  • Violent crimes will result in suspension until their verdict
  • Absences of more than X days are not permissible
  • Employees cannot use vacation time for court-mandated appearances

Address under what circumstances an employee may be allowed to return to work. Include any information about the employer’s option to fill the position, and establish any guarantees of work or lack thereof. 

Consulting with a lawyer about your state’s employment laws will ensure you are respecting the rights of employees. A professional will know how to protect your business interests. 

Employment After Incarceration: Not Guaranteed

Any circumstance that causes an employee to miss workdays could be grounds for termination. If an employee is in violation of an attendance policy, regardless of the circumstances, many states consider that justification enough.

Keep in mind an arrest is not the same as a conviction.  If an employee is protected under a work contract, the situation may have to meet certain qualifications to fire them. 

Looking for advice on how businesses have crafted their employment after incarceration policies? Visit our small business forum. We’ll help you connect with other business owners and benefit from their experience.