My direct report was arrested at work in the parking lot. Two weeks later it appears they posted bail and are out and about. Their docket still shows a "Formal Arraigment" date in about two months.
What should I do if they walk back into work and expect their job to still be there? The charges are about 10 different felonies, and are pretty serious. My other direct reports have expressed they would be uncomfortable working around this employee even if they should return.
I dont want to make a legal mistake here but my HR department hasn't given me any guidance. What to do?
What does the Employer Policy state on absenteeism? Usually an absence of this sort is considered unexcused and termination can take place from that alone. The other avenue is criminal charges or Grand Jury True Bill on felonies can be checked as public records. If any directly impact Job Duties that alone is reason to keep them out of the workplace pending a final disposition of the charges on unpaid administrative leave.
Work with HR to terminate him on the basis of not showing up for assigned shifts for two weeks.
They should have been termed for job abandonment.
HR should have terminated for missing work for two weeks. It has nothing to do with whether or not the cases have been litigated or not at this time. Additionally, if they have posted bail and not yet returned to work, that is further evidence of job abandonment. Just contact HR and ask them to send a written letter stating the employee was terminated on X date for this reason. Do not mention anything about the arrest just their absence.
Do you want to keep this employee or not?
No
Instead of focusing on what happened outside of the office focus on what happened inside the office. They no showed for two weeks. That way you aren't policing employees outside of work. Their guilt or innocence outside has nothing to do with your work.
That makes it clear. Thank you!
Just be careful. Maybe you should talk to legal before you get your company sued and get fired yourself.
A person is consider innocent until proven guilty.
They didn’t show up for two weeks - they are guilty of that and it’s a fireable offense.
Well maybe, maybe not.
Missing two weeks of shifts is always a fireable offense.
Missing one shift of work is a fireable offense. Missing no shifts at work is a fireable offense. At will employment be like that.
Seriously you could fire him for wearing a funny hat.
If he is at will you do not need a reason to fire him, ffs
This, and at the moment they have only been charged nothing more so until sentenced none of that matters so you really only can do something about the direct impact the missing 2 weeks had been because if you stick to the arrest at all being the issue and they are acquitted then you're wide open for an unlawful termination suit.
Did HR let him go? Does he still have a job? You can let him go for any non protected reason, so why haven’t you yet?
Im concerned about the legality of firing someone before they are proved guilty. I don't know how this works.
You’re not firing them for their guilt or not, you’re firing them for missing work. Being in jail is not a protected absence.
That’s not a protected class. Tell your HR you want them let go and barred from the premises.
Are you uncomfortable with them? Do you believe them? My friend got arrested for a DUI and was let go that next morning, months before the court case.
A DUI, while unacceptable, is a little different than multiple felony charges.
Edit: I don't think I phrased this well. I'm agreeing and trying say if just a DUI can get you fired, multiple felonies definitely can.
Not really when I’m answering the question above. Presumed innocence is for a court of law, your employer doesn’t need a reason to let you go much less this.
Yeah I'm agreeing with you. If someone was let go over a DUI, multiple felony charges would definitely do it.
Oh so sorry!! Yes sounds like too much of a risk for your other employees
A DUI can be a felony and in many professions, even if it's a misdemeanor, one can still lose their job. In my line of work, a DUI prevents you from being hired (due to state licensing requirements) unless we request an exemption and the candidate jumps through all the hoops & the exemption is granted by the state.
PA is an at-will state. You can fire them for anything that isnt a protected ground. In this case simple absenteeism will likely do. Work with your HR team to get this done.
We had an employee arrested and hit with sex trafficking charges after organizing and participating in more than a few hotel orgies with sex workers.
He tried to just come to work like nothing happened a few days later. He didn't even make it to his desk, HR and security intercepted him and walked him out.
"Being arrested and charged with a crime" is not a protected class. Show your employees you're a good boss and fire him.
In some states, charges and convictions on their own may not be considered in employment decisions, and in others, the charge or conviction must reasonably relate to the job in order to be considered. OP should check PA law on this point before they do anything. For all they know, this person is innocent and the victim of mistaken identity.
OP doesn't need a reason to fire them, as long as it's not because the employee is part of a protected class.
Montana is the only state that isn't at will.
Why wasn't this addressed with HR when they were arrested at the workplace? You should have already been prepared for this.
He abandoned his job so he is no longer an employee
This has happened in my office before, we fell back on the attendance policy for termination.
When I worked for USPS if charged with a felony you were suspended until the case was resolved. If not convicted you can return to work, if convicted your fired. If not not sure if you would get back pay. But government is not fond of felony convictions
Reach out to your HR department for legal guidance. You don’t want to own this. They might need to reach out to a legal counsel to know how to handle this. So it doesn’t backfire on you or your employer.
Innocent until proven guilty.
The kindest thing is unpaid leave until the charges are resolved, then termination if convicted.
The nature of the crime would matter to me. A fiscal theft for a person who works in Finance? Termination.
Child Abuse, sexual assault, kidnapping? Termination.
Drug or alcohol issue that could require rehab? Maybe suspension but not termination.
That said. people are innocent until proven guilty and while you may have the legal right to terminate, do you want to?
Very high profile case in my area of a woman accused of murder, lost her job. she is innocent and was framed by some crooked cops. Now she is without work, millions in legal fees. and she wasn’t a criminal.
Karen Read?
yes
I think this is what OP is thinking, and this thread is exactly why most people hate HR. As the head of HR for my company, I think about this stuff frequently.
Let HR go full HR and terminate for “absenteeism” when a person ends up being fully innocent? I can 100% see a sympathetic judge ordering the person to receive their job back. Now you’ve basically got a bitter enemy in your workplace, and anything you do to them will appear to be retaliation.
In an event like this, I’d suspend indefinitely pending the outcome of the case. Figure out the timeframe, probably hire someone new for the role, and on the off chance they end up being innocent, figure it out at that time.
You’re getting all the downvotes but that’s exactly how I’d handle it too. It protects the interests of the other employees who may be rightfully apprehensive about working with someone accused of serious crimes, whilst also respecting that the employee hasn’t been proven guilty yet and may well be entirely innocent.
If you truly believe in “innocent until proven guilty” then it’s the only way, unfortunately most people don’t truly believe in that concept for others only themselves, other than as a nice phrase.
Given the US legal system it’s overwhelmingly likely the employee will be convicted or take a plea so you’ll almost certainly end up letting them go, but at least a period of unpaid administrative leave allows you the flexibility to keep employing the person if it turns out they truly were innocent.
Yes. For No-Call/No-Show.
Damn 10 felonies I feel like any job would fire him. Willing to share what he did?
Not necessarily….
Can I tell you about a guy who was CONVICTED of 34 and somehow got his job back?
Union?
Wow! What did he do?
That many days no call no show should qualify as a voluntarily quit. Check your state employment laws.
There is generally an employment handbook that tells you what to do.
Where i work, once you have served your time, if you disclose they will not fire you. Felony arrest while working you are gone.
Talk to hr, now.
If your company is somewhat competent, they should have fired him 2 weeks ago after he was arrested , or a couple days afterwards for missing the shifts
When you're saying HR is not giving you direction, do you mean that they haven't told you anything when you asked, or you haven't asked and they haven't told you anything?
In any event, you should contact your boss and hr to make sure someone did something .
Yup.
I would have made an attempt to contact the employee (knowing full well he won’t be able to answer) and follow up with a letter ending employment for No-Call/No-Show - which this is. The reason doesn’t matter.
Reading between the lines, he's only a manager, not the owner, not an hr, I don't think he's the one who should be doing that, that should be upper management or HR
I let my bosses and HR know, but received none of the very helpful information in this thread. They told me to wait until formal hearing. It was weird, and that is what brought me here.
"formal hearing" might be that they did fire him, and he sued them for improper discharge... But it's weird they are nkt spelling thst out for you
Ah so treat them like they're guilty even without a conviction. Yall kinda suck.
Go by the book and consult HR and make sure they are informed. We tend to overstep our boundaries with virtue signaling(look how bad this person is, that makes me "good")and being the morality police. It is their risk to keep them, not yours, yours is to make sure they are informed. If and when they end up stealing from the company, you simply point back to where you advised. You aren't a judge and jury, you're here to support your family. If you can help someone out sure, its already bad enough to get felonies and then to lose your job at the same time but that's life. I've gained it all, lost it, resented the people who took it from me while I gained it all back and then realized how funny and silly life really is. You don't owe anyone anything, and likewise they don't owe you so don't feel bad, just follow employee handbook policy and move on with your life. None of this people will be at your funeral and none of us are "good" in the eyes of the Lord so leave your judgments out of it.
Get rid of them
In California, state law prohibits terminating or disciplining and employee based solely on an arrest that has not resulted in a conviction. Check to see if your state has similar laws. We have other options. The employer can conduct an independent investigation into the matter and terminate the employee based on those findings, or they can put them on a paid leave of absence until the matter is resolved by the courts, but that is costly to the employer. There is the option of terminating the employee for being absent without leave while they were in jail, however, if they are later acquitted, they may argue the absence was involuntary consequence of something the court cleared them of and ask for their job back.
make sure your job has armed security guards for at least a couple months.
Wow, so much for innocent until proven guilty? So many excuses provided for vigilante punishment by civilian employers.
If he's at will just fire him. If union, have to be more nuanced.
sometimes the strategy is system that look at you have a lot of personal things going on you haven’t shown up for two weeks. How about if I give you two weeks severance we both sign an agreement that we won’t say anything bad about each other and you just use the time to take care of your personal issues.
How is it that you are in a leadership role? Get off Reddit and get a clue.
Yeah, I'm throwing the BS flag on OP. This is not something HR is going to dodge. If it's a small company with a 1 person HR, they have services available where the full facts can be shared to make a legally and ethically correct action.
Expecting reddit randos to give good advice based on partial facts is not a smart way to protect the company or employees.
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Why did you hire this guy in the first place? Did you do a background check and check references before hiring him? Was he a good employee? What was his role? What was he arrested for?
(I have no advice, just curious how a person like that can get a good job and someone like me - educated, professional, smart, kind, ethical - can't find anything at all.)
Has it not occurred to you that people without a record get hired all the time and then start committing crimes? I had an employee taken out in handcuffs yesterday for serious crimes. Thorough background check done a year ago when hired because we are a state licensed facility. This person didn't have so much as a traffic ticket when hired.
What makes you think this person had a "good job"? For all we know he was making $9 an hour at McDonalds.
Also, not all jobs do a background check, and many jobs will still hire people with criminal records particularly entry level, retail, and food service. My place of employment is a second chance employer, we have numerous felons working here, it's really a non-issue. If they go back to jail then they lose their job due to job abandonment, simple as that.
You're right, I was making a bad assumption. I'm just very frustrated that despite being an excellent law abiding hard working employee I can't find a decent job.
What’s the point of this comment?