Human Resources News & Insights

Answers to tricky HR questions: Worker gets arrested — what now?

Our team of experts fields real-life everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s question: We got a report about an employee’s drug-related arrest. What action should we take?

Question:
We learned through a local newspaper that one of our employees was arrested recently for DUI and drug possession. We’re concerned about workplace safety and other issues — his manager said there were suspicions that the employee had used drugs on the job.

What do we do now?

Answer:
Conduct an independent investigation, recommends employment-law attorney Roy Ginsburg.

First, talk to the employee about what happened. If you want to verify his version of the events, you could also get a copy of the police report.

Once you have the facts straight, speak with the employee and let him know you think he has a problem and that you want to help.

If he’s defensive, noncommittal or defiant, those are red flags. You might want to go to the next step, such as requiring that he take a drug test.

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  • Greybeard

    RE: advice to conduct your own investigation & get the employee’s side of the story — if the employee’s lawyer is any good, he will have advised his employee not to cooperate, other than a flat denial. While communications between the employee & lawyer are privileged — i.e. the police/DA can’t make the lawyer reveal what his client told him. However, anything he tells you probably isn’t covered by this priviledge, and could be used against him, either directly to impeach his testimony or plea, contravene his lawyer’s alternate theory, or as leads to uncover additional damning evidence.

    You can of course question others, but the police or DA may be less than cooperative. Their interest is the integrity of their case in court, not your HR case against the employee.

    Better in my mind to carry the employee as AWOL — assuming he’s not on excused absence, e.g. previously scheduled & excused vacation, or some sort of “personal days” that don’t require prior approval, why pay him? — until the legal case is resolved. If he’s convicted (or pleads nolo contendere etc. — then you have evidence he can’t dispute. If he’s found innocent & the evidence suggests that the bust was in fact a mistake, you can retroactively clean his employment record of the AWOL charge & change it to some form of approved leave without pay. Don’t pay him for the absence, beyond possibly whatever vacation leave he may have on the books, unless your counsel says that’s necessary.

    If it appears he got off on a technicality you can then investigate & reach your own conclusion, recognizing that in an employment action, you may be held to a lesser burden of proof — “preponderance of the evidence” (more likely true than false) or “clear and convincing evidence” — depending on what third party you have to answer to — but likely still less than “beyond a reasonable doubt.” Also, technical violations by the police in their investigation that result in an acquital, may not apply to your emoployment action — again depending on who you will answer to.

    Disclaimer — I operate in a civil service environment with its own rules of evidence and procedures, & with a collective bargaining agreement covering most non-supervisory employees. A terminated employee can opt for a civil service hearing or arbitration, but our arbitrators are required to apply the civil service rules as to burden of proof etc. You should of course consult your own counsel or a lawyer familiar with your own legal situation. He may or may not agree with my approach, but IMO its worth at least discussing.

  • Greybeard

    RE: advice to conduct your own investigation & get the employee’s side of the story — if the employee’s lawyer is any good, he will have advised his employee not to cooperate, other than a flat denial. Communications between the employee & lawyer are privileged — i.e. the police/DA can’t make the lawyer reveal what his client told him. However, anything he tells you probably isn’t covered by this priviledge, and could be used against him, either directly to impeach his testimony or plea, contravene his lawyer’s alternate theory, or as leads to uncover additional damning evidence.

    You can of course question others, but the police or DA may be less than cooperative. Their interest is the integrity of their case in court, not your HR case against the employee.

    Better in my mind to carry the employee as AWOL — assuming he’s not on excused absence, e.g. previously scheduled & excused vacation, or some sort of “personal days” that don’t require prior approval, why pay him? — until the legal case is resolved. If he’s convicted (or pleads nolo contendere etc. — then you have evidence he can’t dispute. If he’s found innocent & the evidence suggests that the bust was in fact a mistake, you can retroactively clean his employment record of the AWOL charge & change it to some form of approved leave without pay. Don’t pay him for the absence, beyond possibly whatever vacation leave he may have on the books, unless your counsel says that’s necessary.

    If it appears he got off on a technicality you can then investigate & reach your own conclusion, recognizing that in an employment action, you may be held to a lesser burden of proof — “preponderance of the evidence” (more likely true than false) or “clear and convincing evidence” — depending on what third party you have to answer to — but likely still less than “beyond a reasonable doubt.” Also, technical violations by the police in their investigation that result in an acquital, may not apply to your emoployment action — again depending on who you will answer to.

    Disclaimer — I operate in a civil service environment with its own rules of evidence and procedures, & with a collective bargaining agreement covering most non-supervisory employees. A terminated employee can opt for a civil service hearing or arbitration, but our arbitrators are required to apply the civil service rules as to burden of proof etc. You should of course consult your own counsel or a lawyer familiar with your own legal situation. He may or may not agree with my approach, but IMO its worth at least discussing.

  • Stacy

    a while back ago, one of our driver’s had a DUI over the weekend. We would not have known anything about the DUI but she was honest enough to come to her supervisor to let him know since she wasn’t sure what would happen to her license. We temporarily took her off the road as a safety measure but we didn’t terminate her since this was a weekend offense. After her court date and sentencing, we asked her to give us a copy of her current driving record as proof of the status of her license and to figure out if we wanted to give her the delivery duties back. Turns out her license was restricted for several months but not suspended. We did decide that she was no longer to be a driver unless it was an extreme emergency. This turned out to be good cross training for others in the deparment and now any employee can drive & deliver if we are short handed.

  • SM

    “…let him know you think he has a problem.” An attorney is advising this? Years ago I read a case where an employer tried to get someone help he thought was an alcoholic by referring him to AA and such. The employee sued under ADA for the employer forcing a disability on him and apparently won (this was years ago, I don’t remember the actual case).

    There is no way I would take that approach described.

  • Dawn

    This is the worst advise I have ever heard. As SM says you are opeing yourself up wide for a ADA or FMLA case depending on if they admit they have a problem and require treatment. As for the drug testing most states have some kind of restrictions, usually you have to have a written policy in effect or you could face a discrimentation case as well. You can get a copy of the report and depending on postion and job duties put on LWP or layoff if they drive or operate company vehicles or machinery. I would recommend getting legal advise if you plan to terminate before conculsion of charges.

  • Been There (Not the drunk)

    Conduct an independent investigation, recommends employment-law attorney Roy Ginsburg. (Advise good so far)

    …First, talk to the employee about what happened. If you want to verify his version of the events, you could also get a copy of the police report…
    (Starting to make me nervous. Not bad advise, except make sure you are clear on YOUR OWN POLICY, know your plan AHEAD of time – if this, then this will happen, can you defend a legit business reason for acting before he is found guilty? Maybe you can if safety involved like driving or machinery) If you jump in with your “diagnosis” too early, you might get yourself in a twisted mess. Are you prepared if he is in Alcohol treatment? What about ADA? What if he is in a protected class and your supervisor didn’t do anything about anyone else using on or off the job? I’m not saying you can’t do anything, I’m saying have ALL the facts and your strategy laid out before talking to him. The advice was way to simplified.

    Once you have the facts straight, speak with the employee and let him know you think he has a problem and that you want to help. ( This advise is horrible! You THINK he has a problem, WHATT??? Based on a newspaper article? Based on hearsay? So now you’ve given him a perceived disability…great… )

    1) What is his position? Does he drive? Is there a bonafide reason to fear safety on the job?
    2) Where was this supervisor before with the ‘suspicions’?
    3) What is your policy on controlled substances? Do you have a ‘reasonable suspicion’ clause that you could use?
    4) Do you have an EAP to help you with this?

    If he’s defensive, noncommittal or defiant, those are red flags. (Agree)
    You might want to go to the next step, such as requiring that he take a drug test. (REQUIRE TO TAKE A DRUG TEST? Based on an ARREST? What does you Substance Abuse policy state you’d do?
    More things to think about, that’s why they call this tricky… :)

  • Mike R

    On the surface, good advice. The expounding advice is good, as well. As an HR professional, I am stuck with the employee’s performance and how that affects the job. This advice is good for all employee situations.

    -Conduct an independent investigation- this is so important whether you read something in the newspaper or their are “rumors” from other employees.

    -First, talk to the employee about what happened. If you want to verify his version of the events, you could also get a copy of the police report.- I would agree that you should talk to the employee, I’m not convinced it would be the FIRST thing I would do. I would possibly look at the employee’s job performance, talk with the supervisor and co-workers to see if their are any job related problems or signs that have presented themselves.

    -Once you have the facts straight, speak with the employee and let him know you think he has a problem and that you want to help.- I would look at the possible resources for help before meeting, contact EAP for advice.

    -If he’s defensive, noncommittal or defiant, those are red flags. You might want to go to the next step, such as requiring that he take a drug test.- If a person made the news for a drug/alcohol arrest, we will be sending them for drug/alcohol screening. Don’t need to see these “red flags” to make that determination. Certainly, I would expect anyone who returns to work after a run in with the law to be “defensive, noncommittal or defiant.” If there are performance issues that need to be addressed they will be addressed. If there are no performance issues on the job, the employee will be placed on notice that the company is aware of their problem (legal and possibly chemical dependency) and that the EAP program (which can provide confidentiality) can be of help.

  • CB

    At the risk of sounding harsh… if he’s defensive, noncommittal or defiant – wouldn’t you just term him? The ADA does not protect ee’s for current drug use – only for an addict seeking treatment. It also doesn’t require that you beg them to enter a treatment program – right? so what other protection would he have? and yes “Been There” good point about what your drug policy says (or if you even have one). You could certainly run into some privacy issues on that one.

  • Stacy

    All good advice but I’d probably seek legal counsel before conducting my own investigation especially if the offense does not affect job performance something that is totally non drug or alcohol related. Sometimes people are in the wrong place at the wrong time which you could tell if this has never happened before. How much of our employees private business is the company’s business? I’d definitely be afraid of violating privacy.

  • Richard Lance

    In the past when I have employees arrested for actions that could possible jeopardize my customer or fellow employees, I have place the employee on indefinate suspension. When the matter was resolved, based on the findings, We would make a second determination on bringing the employee back to work. That determination, would again be based on the issues of customer and employee safety. I have been doing this job 30+ years and this approach has always worked.

  • Mary T

    If the employer received a report that the employee was arrested, I am assuming (!) that the employee did not show up at work as scheduled. We have a “no call no show” termination policy.
    Could that be invoked and skip all the other issues? I am very new to HR, but can this be kept simple?

  • RandiG

    Mary T., unfortunately nothing is simple in HR! Would that it could be so….

  • Merlynn Bertini

    As some others have pointed out–the advice suggested–is questionable. One thing every employment attorney have I worked with has stressed–is never, never, never suggest or indicate to an employee s/he has “a problem”. As “SM” indicated above–this is a huge issue for a company. The company could be held responsible for the employee’s treatment. I worked for a company where a manager said something similar to an employee (recommended counseling) and the company had to pay for the treatment because it was “recommended by the manager that the employee attend counseling”. The other concern I would have is if a company does not have a policy regarding a DUI or drug use (also is there verbiage regarding similar issues during “no-work hours”)? It could look discriminatory if action is taken–from an attorney’s perspective (I am not saying I agree with this) s/he would indicate why is any action being taken as the employee has not violated company policy. This is one of those instances where consulting an employment attorney should be considered prior to taking action–it will be a cost savings in the long run.

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