Lynne Curry: Employee's arrest has company debating what to do next

ManagementBy LYNNE CURRYMay 26, 2013 

Q. "Sara" didn't arrive at work yesterday morning. Because we worried about her, we called her cell at noon and got no answer. The next morning, we called her cell and her apartment and again got no answer.

That afternoon, we called the police and asked them to check on her apartment. They let us know Sara was in jail but gave us no other information.

Are we allowed to ask why? If not, what can we do to protect other employees and our property from Sara if it turns out she's a thief or something worse? Can we just terminate her?

A. Although federal and state laws recognize employers may have legitimate business reasons to ask employees about arrests, please remember arrests don't equal guilt.

While employment at will generally allows an employer to fire any employee at any time for any or no reason, if Sara's arrest doesn't relate to her job, don't use it as the basis for firing her. For example, if Sara was arrested for driving while intoxicated and doesn't drive during the workday, her charge doesn't directly relate to her job or pose a significant safety risk to other employees.

If the conduct that led to Sara's arrest poses a safety or security risk to others or is job-related, it may give you a reason to fire her. For example, if Sara makes home visits on your clients and her arrest is related to assault, suspend her with or without pay until her case wends its way through the courts and then decide.

If you prematurely let Sara return to work and an incident occurs, you have exposed others to harm and may be liable. If her conduct led to a charge of sexually molesting a child and you run a day care center, consider firing her. You can't afford that risk.

If you have a policy requiring employees to call in for absences, Sara violated it. While she may only have been given the opportunity to make one call, she could have asked whomever she called to let you know she wouldn't be at work. That potentially gives you the right to suspend her without pay or even terminate her.

If Sara has been a great employee and you otherwise trust her, don't rush to judgment. If she simply got caught up in a bad situation not of her own making, you may want to give her break. At the same time, you owe it to your other employees to cut Sara loose if her actions might put them in jeopardy.

Q. Our company is growing and hiring new employees daily. I've been using a smartphone app to do instant background checks on potential hires.

When I turned "Sam" down because he failed his check, he blew up at me, saying he'd never done anything wrong. Sam's father then called me, saying I'd unfairly blacklisted Sam for no reason. As Sam's dad works for our major client, I'm afraid this situation could blow up. I've asked my manager if he will take responsibility for OK'ing Sam's hire.

The only local background check company I've found requires a lengthy sign-up process and doesn't give me the hourly turnaround time I need.

A. Some instant background checks aren't worth the time they take. Some provide misleading information. Others don't observe Fair Credit Reporting Act guidelines.

I checked your app's website. It includes a disclaimer that its searches shouldn't be used for making employment decisions. For these and other reasons, the Federal Trade Commission is cracking down on sellers of mobile apps offering instant background checks.

Instead of asking your manager to take responsibility for Sam's hire, dig yourself out of this problem by finding a credible vendor and conducting a real check. It may clear Sam.

Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Company Inc. Send questions to Lynne at lynne@thegrowthcompany.com or follow her on Twitter @lynnecurry10.

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