Sunday, February 5, 2023

Employee Arrested While Off Duty? Proceed Cautiously; Gather Facts

One of our employees did not show up for work yesterday and failed to call or otherwise notify us of his absence. We have a no-call/no-show/no-job policy. Another employee told us that the missing employee was arrested over the weekend and is in jail. Can we fire him?

Employers need to proceed carefully before taking any adverse action against employees who have been arrested while off duty for crimes that are unrelated to their jobs. The main reason for caution is that California prohibits termination and other adverse actions based on an employee’s arrest.

Labor Code Section 432.7(a) provides that no employer shall “utilize, as a factor in determining any condition of employment including hiring, promotion, termination… any record of arrest or detention that did not result in conviction.”

An arrest is an accusation, and the employer should not assume that the employee committed the crime. Because the initial information that an employer receives about the arrest usually is incomplete, the employer must be careful to gather the facts and not to overreact or rely on gossip and hearsay.

Investigation

Employers are permitted to ask about arrests and the circumstances surrounding them. The primary purposes of an investigation are to:

• Understand the nature of the alleged conduct underlying the arrest.

Was the arrest for violent conduct?

Is the employee alleged to have committed a property crime such as theft or embezzlement?

• Confirm the employee’s job duties and the impact of the alleged conduct.

Does the alleged conduct pose a risk because the arrested employee interacts regularly with co-workers and/or provides face-to-face customer service?

Does the employee handle money and was accused of a money or property crime?

• Determine how much work the employee is likely to miss.

Is it likely that the employee will be released from jail shortly and be able to return to work?

Will the employer be able to hold the job open for the employee through the judicial process?

• Evaluate the impact to the employer.

Is the arrested employee’s position integral to business operations?

Is the arrest public information that may damage the employer’s reputation?

Does the employer face potential civil liability if the employee returns to work?

Options

An employer’s options are no action, paid suspension, unpaid suspension, or termination for a reason other than the arrest.

Placing an arrested employee on leave is an appealing choice because it allows the employer to gather information, consult with legal counsel, and allow the judicial process to unfold. If the leave is unpaid, and no conviction results from the arrest, backpay may be considered.

Court Case

The complexity of this situation is reflected in the facts underlying Tilkey v. Allstate, 56 Cal.App.5th (2020). In 2014, Michael Tilkey, who had worked for Allstate Insurance for 30 years, was fired after he was arrested for disorderly conduct, disruptive behavior, and domestic violence. Tilkey sued for wrongful termination, defamation, and a violation of Labor Code Section 432.7.

The jury awarded him $2,663,137 in compensatory damages and $15,978,822 in punitive damages. Allstate appealed.

The appellate court held that Allstate had not violated Labor Code Section 432.7 because Tilkey had agreed to a plea bargain, which the court held was a conviction. However, the court found for Tilkey on his self-compelled defamation claim.

Tilkey is a cautionary tale. If you learn that an employee has been arrested, it is best to deliberate carefully and consult with legal counsel before taking any adverse action against the employee.

Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Sharon Novak
Sharon Novak
Sharon Novak joined the CalChamber in 2021 as an HR adviser. She previously practiced employment law in firms in Montana and Chicago, served as employment counsel for a national company based in California, and assisted employers as a director of workplace solutions. Her employment law practice included trial work, professional support to human resources departments, and workplace investigations. She also has developed and conducted seminars on critical employment law issues, including sex and age discrimination, sexual harassment, wage and hour practices, and wrongful terminations. She holds a J.D. from Gonzaga University Law School.

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