Former Desperate Housewives star Felicity Huffman is currently serving a 14-day sentence in federal prison for her involvement in a college admissions cheating scandal. In addition to her brief prison stay, Huffman was sentenced to 1 year of supervised release and 250 hours of community service. Of course, Huffman is a famous and wealthy celebrity, not a regular working stiff like the rest of us, so she’ll likely be able to weather her brief absence from her daily commitments just fine. But what should you do if one of your employees is arrested, convicted, or incarcerated for criminal activity?
Get the Facts
If you discover that an employee has been arrested for a crime, you may decide to adopt a wait-and-see approach, especially if the arrest was for a minor offense or there is reason to believe the arrest may not result in formal charges or a conviction. This is America, after all, where people are presumed innocent until proven guilty. Still, employees who are arrested do not have a right to escape the consequences of their arrest until their case winds its way through the court system. One thing’s for sure: An employee’s absence from work due to an arrest, court appearances, or incarceration may be addressed the same as any other unexcused absence under your company’s attendance policy. In addition, depending on the seriousness of the charge, you may choose to suspend the employee without pay pending the outcome of the court case.
In the meantime, employers can and should inquire about the conduct and the circumstances underlying the arrest to determine whether the employee’s conduct will have a negative impact on the business’s reputation or the employee’s ability to continue in his or her position. Some questions to ask in making this determination are: (1) Has the employee’s conduct negatively affected your confidence in the employee’s ability to perform his or her job? (2) Does the employee’s conduct endanger the safety and security of your other employees, clients, or customers? (3) Has the employee’s conduct caused a disruption in workplace productivity? (4) Has the employee’s conduct gone against your company’s stated mission and values?
Be Mindful of Antidiscrimination Laws
The large majority of criminal cases that proceed past the charging stage are resolved by a plea of no contest or guilty. In Huffman’s case, she pleaded guilty to paying a bribe to boost her daughter’s SAT scores in order to help her get into college. If your employee admits to violating the law, what then? As a general rule, federal law does not prohibit employers from taking action because of an employee’s criminal activity, but using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964 and state antidiscrimination statutes if employers treat employees with similar criminal records differently because of their race, national origin, or other protected characteristic. Employers are also prohibited from using disciplinary policies based on criminal history information that have a disparate impact on minorities or bear no reasonable relationship to an employee’s job.
Comply with the FCRA
Employers obtaining criminal history information on an employee through a consumer reporting agency also must follow the Fair Credit Reporting Act (FCRA). Among other things, the FCRA requires employers to obtain an employee’s permission before performing a criminal background check. The FCRA also requires employers to provide a summary of FCRA rights to the employee and deliver specific notices to the employee before and after any negative employment action is taken based on the information received from a consumer reporting agency. Many states have enacted their own laws further restricting the use of criminal history information in employment decisions, so it is imperative that employers comply with the FCRA, and any state law counterpart, to avoid civil liability.
Huffman’s embarrassing and dishonest conduct has deprived her of her liberty (for a whopping 2 weeks), but chances are, her career will bounce back relatively unscathed. As for you, deciding how to respond to your employee’s criminal conduct implicates a host of legal issues and challenges. In order to respond in a way that is fair, and legally compliant, you should seek counsel from your employment law attorney before taking any adverse employment action related to an employee’s criminal activity.