An employee has been arrested, may I ask about the nature of the infraction? What action can or should I take to protect my other employees?

Many employers use criminal background checks during employment selection and decision processes, and employers may become aware of a current employee’s arrest. Although there is no federal law that clearly prohibits an employer from asking about arrest or conviction records, an arrest alone does not necessarily mean that an employee has committed a crime, and the employer should not assume that the employee committed the offense. Instead, the employer should allow the employee the opportunity to explain the circumstances of the arrest and should make a reasonable effort to determine whether the explanation is reliable.

In those jurisdictions where state laws do not ban inquiries regarding arrest records, employers may make employment decisions based on the conduct underlying the arrest. EEOC enforcement guidance on consideration of arrest and conviction records in employment decisions issued in April, 2012 states that while an arrest record alone may not be used in an employment decision, an employer may make an employment decision based on the conduct underlying the arrest, if the conduct makes the employee unfit for his or her position. The conduct, not the arrest, is relevant for employment purposes.

Accordingly, an employee may be suspended or terminated for an arrest so long as the conduct for which the employee was arrested is relevant and makes the individual unfit for the position, Examples may include a school bus driver who is arrested for drunk driving, or an employee of a daycare center who is arrested for sexual molestation of a child. However, if an employee such as a bus driver or daycare worker instead were arrested for disorderly conduct, the charge would not likely be considered job-related nor would it likely indicate a significant probable safety or security risk to others. Therefore, the employer might not have a justifiable defense for taking any employment action against the individual as a result of the arrest.

Employers should be aware of state laws regarding arrest and conviction records and how they interact with the EEOC’s guidance. Additionally, employers should review the best practices provided in the guidance. These best practices include developing a written policy and procedure for screening applicants and employees for criminal conduct; identifying essential job requirements and specific offenses that may make an individual unfit for a position; training managers; maintaining confidentiality; and limiting inquiries to records that would be job related for the position and consistent with business necessity. It is always advisable to review employment-related decisions and policies with legal counsel.