Jailed Employees Present Unique Challenges

When employers receive notice that an employee has been arrested for committing a crime they often are unsure of their options. In Connecticut employers do not have to wait for the criminal justice system to determine guilt or innocence before taking action. You may terminate the employee before a final determination is made by the courts, or alternatively you may wait until a verdict is rendered.

There is no requirement that an employer treat an employee as innocent until proven guilty. If the employee is incarcerated without bail and cannot report to work he may be discharged for absenteeism. As with any “at-will” employee, an employer can discharge any employee for any reason, with or without notice, at any time, provided the discharge does not violate public policy, or an applicable statute. To date, Connecticut courts have not found that jailed employees have a public policy right to continued employment pending the outcome of a trial.

Even when the employee is released on bail and can report to work pending trial an employer may still terminate him under the “at-will” doctrine. Employers should carefully analyze the basis for the arrest and determine if a return to work would pose any added risk to other employees, customers, or the business’ reputation. If so, employers may want to terminate the employee to avoid later negligent retention claims, or harmful publicity.

If the employee is allowed to work until trial he may still be terminated for absenteeism while attending the trial, or following a guilty verdict. Where an employer has terminated an employee prior to a verdict and later learns of a not guilty determination, the company may want to consider rehiring the employee, and perhaps treat his period of unemployment as an unpaid suspension, but it is under no obligation to do so.