Having an employee who is convicted of a crime affects your business adversely, regardless of the circumstances. If the employee has committed a crime on the job, the effects can be long-reaching and expensive. You need the advice of an attorney to explain your rights and the consequences that the employee is facing. It could require audits, inventories, and investigations which will be time-consuming and affect day-to-day operations. If the employee were convicted of a crime away from the job or outside of working hours, you would have to consider:
- How long they will be away from the job
- If they are a danger to other associates or clients (and)
- If other employees will feel safe working with the person when they return
- How the arrest will affect your reputation as a business owner
- What the nature of their crime is
- If their crime/punishment will affect their ability to do their job (or a conflict of interest)
Even if you believe you will never be faced with this problem, it is best to have a plan and policy in place to deal with the unlikely event. Consult your attorney regarding the EEOC laws of your state and understand your rights and your responsibility. Your initial plan of action should be as follows:
- Immediately place the employee on suspension without pay
- Advise the employee that immediate reinstatement will happen (only) upon acquittal of the crimes they are charged with
- Conviction will result in immediate termination
If this is recorded in your company policies, you have a logical plan that is provided to employees at the time of hire and verifies that there are no misunderstandings. This basic policy is the best protection for your company and removes all the other issues regarding how you will handle the situation.
Using Personal Time, Vacation Time, or Absence days
The next part of your policy should address the amount of time the employee will need off after their arrest. Obviously, the employee cannot be at work if they are at court or incarcerated. Your policy should be as specific as possible.
For instance, make it clear that days off are considered unexcused absences. Your employee handbook and policy guide should explain how many unexcused absences are allowed before the employee is terminated. Then, you simply let time run its course and follow-through.
Whether you will allow the employee to use personal time or vacation time is another issue. Many companies pay their employees for unused vacation or personal time upon termination. If you choose not to allow the days to be used, paying the employee at least at a percentage rate is a good idea.
What if you routinely hire ex-criminals at your business?
Some businesses offer jobs to people who have been convicted of crimes, on probation, or involved with work programs. If you are one of these companies, you will need to address the issue of a new conviction differently. Your employee may be arrested on a probation violation such as failure to pay a fine or appear in court. It is also common for ex-criminals to face legal trouble for even being found in the company of a person who is a known criminal.
Convicts have a very hard time making a living and dealing with the restrictions their release imposes. As a result, arrests are not uncommon. Here are some suggestions to handle this unique situation.
- All arrests must be reported to the company as soon as possible
- Full disclosure is required concerning the charges
- Until the case is dismissed, the employee will remain on unpaid suspension
- Provide a list to act as a guideline that spells out obvious infractions that will immediately require termination of the employee
- A person who drives a school bus (or company vehicle) cannot have a DUI charge
- A person who is accused of violence or sexual abuse against children cannot work around children
- If the crime includes use of a firearm or deadly weapon
Your attorney can assist you in creating a policy that fits with the scope of your business.
It is critical to have a plan in place to avoid potential legal issues. Do not put your business or employees and clients at risk. Not only have a plan, but also make sure all your employees know and understand the company policy.
By preparing yourself now, you can protect your company and remain in compliance of all laws associated with employees who are convicted of a crime. If you find yourself facing the unthinkable, you are ready to take immediate and clear action.
Author: Attorney Rick Hutchinson, Esq. is a criminal defense attorney and one of the partners at Hutchinson & Huffman, P.A., a law firm that is based in the city of West Palm Beach, Florida. This practice offers legal services in a range of different criminal defense areas, including DUI, drug crimes, sex crimes, theft, white collar crimes, and more. Follow @hutchhuff on Twitter.
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