It’s the kind of phone call many managers dread: a staff member for whom they are responsible for is in jail. The most immediate response is normally, “We have to let them go.” But terminating jailed employees isn’t as easy the immediate call-to-action most managers feel. As Chicago-based attorney Margaret Angelucci stated in Privacy and Security Law (The Bureau of National Affairs), “employers have a “particularly high” standard of proof before dismissing an employee for off-duty activity”.
Herein lies the problem: in most states, an employer cannot terminate jailed employees merely because they are incarcerated – unless the charges specifically relate to the job they are performing in the workplace (such as an Account Executive under investigation for company fraud or a retail staff member caught shoplifting while on duty).
Does the employer have any rights in terminating jailed employees? They do, but it really depends on where the company is located geographically. Some states allow for more measures than others, so it’s wise to contact the local government regulatory bodies before moving forward. In most cases, however, there are several things you can do to protect your company’s assets in the meantime.
Keep Excellent Records
First and foremost, start keeping an up-to-the-minute log of the accounts and events that transpire from the moment you received word the employee was jailed. If there is any written documentation to support their incarceration, provide it to your HR department immediately. Where there isn’t, confirm what you are able to on the phone and take note of who you spoke to when, where and why regarding the situation. This way if you do end someone’s employment, you can do so with quantitative evidence backing you up that the terminated jailed employees were unable to perform their job duties.
Terminating Jailed Employees for Absenteeism
Angelucci suggested in the aforementioned article that terminating jailed employees is possible, as long as the focus is on the work missed and not the jail time. This is a creative yet effective method of ensuring that whatever the employees situation is, they are not being discriminated against, since any employee that doesn’t show up for an extended period of time cannot expect to keep their job under any circumstances. Yet not all unions support this methodology. Therefore, check out the legality of terminating jailed employees based on their attendance records before taking action.
Tripplett, M. R. Despite few limits, lawyers tell employers of privacy and off-duty conduct. Privacy and Security Law, 5, No 13, Retrieved from http://subscript.bna.com/SAMPLES/pvl.nsf/4866a14be3b6f56685256ba3004dcb8b/e2de079a6e336da58525713c005765fa?OpenDocument