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And Another Thing...

Your employee was arrested and detained, now what?    Hopefully, you will never receive a call from an employee (or their family) letting you know they won’t be able to come to work because they are in jail.  But since you never know what Monday morning will bring…  consider Adopting an Employee Incarceration Policy. Here are some basics and options to consider:

Choose a general policy you will consistently follow – remember inconsistency is the basis for many claims; even if you did not make a decision based on protected class,  if you treated them differently,  plaintiff’s attorneys can infer discriminatory motives.  This type of policy is usually handled as a Management or Human Resources Administrative policy; not necessarily an employee handbook policy.  

Using a policy disclaimer…”Given that each case is unique it will be examined on case by case basis; however we follow the general policy of:

Option 1 - Depending on the nature of the offense (charged not convicted) and your industry (school bus operations vs. retail store)  suspend the arrested employee without pay; provide for reinstatement upon acquittal; or terminate on conviction if business reasons warrant.  

Option 2 - Treat incarceration as unexcused absences that is:  “employee unavailable for work”  Your policy can state that an employee who is unavailable for work due to incarceration will be suspended or terminated.  Employee may apply for an open qualified position if such work is available upon release.

Option 3 – Treat incarceration as unpaid personal leave of absence of up to three months for a justified reason. Justification will be determined by Corporation. (This option is open to some industries who may see an employee incarcerated for 30, 60, 90 days for DUI but as their job does not involve driving they would welcome them back.  If jail time is greater than 3 months you can revert to option #2)

If you’d like assistance drafting your incarceration policy please call our office.



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