Written Incarceration Policies

April 13, 2006

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If your experience or the makeup of your workforce suggests that arrests may be something you might expect, you may decide to develop a specific policy for this particular situation. Here are some basic elements to consider:

Require that an employee:
- report the arrest to you
- submit a police report or other documentation concerning the arrest and charges
- comply with the requirements within a certain time frame
Specify that:
- noncompliance with the above-stated requirements constitutes grounds for termination
- misrepresentation of the circumstances of the arrest can serve as grounds for dismissal

Bea, the wife of one of your workers, calls in to say that her husband has the flu. You later find out that he was arrested for shoplifting at a local store. Under your policy, the worker can be fired for having had his wife lie about his absence and for his failure to report his arrest.

If an employee reports an arrest for nonpayment of child support, but documentation reveals that the employee was actually arrested for armed robbery, you may dismiss the employee for lying, so long as other employees have been terminated in similar circumstances. A misrepresentation in and of itself may not be just cause for a termination unless it is specifically stated in the policy.

State that an employee who is unavailable for work due to incarceration will be suspended or fired.
Address the option of offering the employee work upon release, if such work is available.

And always remember to apply the policy consistently and fairly.