What to Do if an Employee Is Arrested Outside of Work Hours

Over the last month or so, we have been asked by numerous employers, whether or not a private employer can terminate an employee who is arrested outside of normal working hours, but has not been convicted of any crime, without facing possible employment law exposure.

Although we are not lawyers, we did check with legal counsel, which stated the following:

Indiana is an “at will” employment state, meaning an employer can terminate an employee for any reason at all, as long as the termination is not for a reason that would be prohibited under state or federal law. For employers with 15 or more employees, there are federal laws that prohibit an employer from terminating or discriminating against an employee on the basis of that employee’s race, religion, age, status as a disabled individual, or gender.  There are also state laws that bar an employer from terminating an employee in retaliation for that employee pursuing a workers’ compensation claim against the employer.

If an employee is arrested outside of normal work hours, even if they have not been convicted, an employer is certainly free to terminate that employee on that basis alone.  In making such a termination decision, however, the employer should still consider whether the termination might appear to an outside party that it is pretextual and is actually being used to cover up a discriminatory or prohibited termination.  An employee being arrested is a solid, objective fact an employer could point to as a justification for a termination.  With that said, it is important to remember that an employer is not totally insulated from employment law liability just because they terminate an individual following that individual’s arrest.

If you still have questions about this, or any other HR related issue, please feel free to reach out to us at: info@strategic-hrsolutions.com anytime.