The question of whether a job can terminate an employee for being arrested is complex and depends on several factors. An employer’s ability to take action is not absolute and is heavily influenced by the type of employment, applicable state and local laws, and the nature of the alleged crime. Navigating this situation requires understanding the legal distinctions between different types of criminal records and the standards employers must meet to justify an adverse employment action.
The Critical Distinction: Arrest Versus Conviction
A fundamental difference exists between an arrest and a conviction, which holds significant weight in employment decisions. An arrest is merely an accusation, signifying that law enforcement has detained an individual on suspicion of a crime, but it is not proof of guilt. A conviction, conversely, is a formal determination of guilt, either through a guilty plea or a finding by a court or jury.
Employers face a higher legal risk when terminating an employee solely based on an arrest record, especially if the charges are later dropped, dismissed, or result in an acquittal. Many state and local laws prohibit employers from using non-conviction records as a basis for adverse employment decisions. Terminating an employee based on an arrest without investigating the underlying conduct or waiting for a judicial outcome can expose a company to claims of wrongful termination or discrimination.
Understanding At-Will Employment and Termination
Most employment relationships in the United States operate under the principle of “at-will” employment, granting employers broad discretion in personnel decisions. Under this doctrine, an employer can terminate an employee for almost any reason, or for no reason at all. The presence of an arrest, even without a conviction, can provide an employer with a reason for termination under the at-will standard.
This authority is not unlimited, as the employer cannot terminate an employee for an illegal reason, such as discrimination based on a protected characteristic. Employees working under a formal employment contract or a union collective bargaining agreement possess greater job protection. These contracts often specify the conditions and procedures that must be followed before termination, usually requiring “just cause” for dismissal. The terms of a valid contract supersede the at-will doctrine and restrict the employer’s power to fire an employee for an arrest.
The Role of Job-Relatedness and Business Necessity
When an employer considers an employee’s criminal record for termination, they must satisfy the standard of “business necessity” to mitigate legal risk. This standard requires the employer to demonstrate that the alleged conduct underlying the arrest is directly related to the specific duties of the job and that retaining the employee would pose an unacceptable risk. The evaluation centers on whether the employee’s continued presence could endanger the safety of the public or other workers, compromise the business’s financial integrity, or severely disrupt operations.
A direct relationship is often found when an employee in a financial role, such as a bank teller, is arrested for embezzlement or fraud. The nature of the alleged crime directly implicates the employee’s trustworthiness and capacity to handle money, which are inherent requirements of the position. Similarly, a delivery driver arrested for driving under the influence (DUI) presents a clear safety risk directly related to the job’s responsibilities.
Employers must conduct a nuanced assessment that links the nature of the alleged offense to the particular job’s requirements, rather than applying a blanket policy against all arrests. This process considers the employee’s specific access, duties, and level of supervision. A non-violent arrest for a minor offense may have no bearing on the ability to perform a desk job. Without establishing a clear connection to job-relatedness, the termination may be viewed as arbitrary if challenged, failing to serve a legitimate business purpose.
Legal Limitations and Anti-Discrimination Guidelines
Federal Guidelines on Criminal Records
The Equal Employment Opportunity Commission (EEOC) provides guidance on using criminal records to ensure compliance with Title VII of the Civil Rights Act of 1964. The EEOC recognizes that using criminal history information may have a disparate impact on certain racial or national origin groups, potentially leading to unlawful discrimination. To avoid this, the EEOC advises against blanket exclusion policies that automatically disqualify individuals based on any criminal record.
The EEOC requires employers to conduct an individualized assessment when a conviction is discovered that could lead to disqualification. This assessment must consider:
- The nature and gravity of the offense.
- The amount of time that has passed since the offense or sentence completion.
- The nature of the job held or sought.
An employer should allow the employee to provide information showing the accuracy of the record or evidence of rehabilitation before making a final decision.
State and Local Limitations
Many states and municipalities have enacted laws that provide stronger protections for employees with criminal records than federal law. These “Ban the Box” laws typically restrict when an employer can inquire about a person’s criminal history, often delaying the inquiry until after a conditional offer of employment has been made. Many state and local statutes explicitly prohibit the consideration of arrest records that did not result in a conviction. These laws often require employers to follow specific written procedures, including notifying the employee of the potentially disqualifying record and giving them time to respond before any adverse action is taken.
Special Rules for Public Sector and Regulated Industries
Employment within the public sector, including government jobs, often operates under more rigid standards than private employment. These roles frequently involve statutory or regulatory requirements that mandate specific background checks and integrity standards. Highly regulated industries, such as finance, healthcare, and childcare, are also subject to licensing requirements that can automatically disqualify an individual based on certain types of arrests or convictions.
In these environments, termination may be automatic or mandatory, regardless of at-will status, if the alleged conduct falls under specific categories like “moral turpitude” or involves a breach of public trust. For example, a financial advisor arrested for securities fraud or a nurse arrested for patient abuse may face immediate suspension or revocation of their professional license. The employer’s action in these cases is often driven by legal compliance or licensing board requirements rather than discretionary employment decisions.
Employee Actions Following an Arrest
Following an arrest, an employee should first seek legal counsel regarding both the criminal charges and the potential employment implications. If company policy requires disclosure of an arrest, the employee must comply to avoid a separate disciplinary action for dishonesty or policy violation. It is advisable to document a clear timeline of events and gather evidence that supports a separation between the alleged conduct and the employee’s job duties.
If the employer requests information, the employee should be truthful but concise, focusing the discussion on how the arrest does not compromise their ability to perform the job. Concealing information when directly asked can lead to immediate termination, even if the underlying charges are later resolved favorably. Proactive communication, guided by legal advice, can help manage the narrative and demonstrate the employee’s commitment to their professional responsibilities.
What If You Are Fired? Legal Recourse
An employee who believes they were terminated unlawfully following an arrest has several avenues for challenge. If the employee suspects the termination was motivated by discrimination based on race, national origin, or another protected status, a complaint can be filed with the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate whether the employer’s use of the arrest record created a disparate impact without a proven business necessity.
If the termination violated a specific state or local law prohibiting the use of non-conviction records, the employee may file a complaint with a state fair employment practices agency. Consulting with an employment lawyer is necessary if the firing appears to breach the terms of an employment contract or a union agreement. Legal recourse often hinges on the employer’s failure to conduct a proper individualized assessment or to demonstrate a clear link between the arrest and the job’s requirements.