Employee Performance ManagementAmericans with Disabilities ActAt Will EmploymentGuest WritersHR Best PracticesFeatured May 7, 2014 by Stanton Law 3 Things Employers Should Do After an Employee is Arrested for a DUI

Last week I received a rather unusual call from a good friend who is a VP of HR at a well-known company outside of Atlanta. It seems that Sheryl (not her real name) had been the recipient of an email from an employee in another department. This employee’s email contained info on someone else at the company- who had been arrested for a DUI. Sheryl said that the email entitled “FYI” essentially contained information that the employee had been arrested 2 weeks previously for a DUI and just “thought she should know.” Now, she and I both know that when people send “just for your info only” emails- they rarely are that simple. Her real concern was what if anything she was obligated to do about the DUI arrest. She confirmed to me that this employee’s role at the job did not obligate him to drive for the company, and his position was not senior enough so as to create any kind of PR nightmare. We talked a bit further, I gave her some advice, and she wisely was planning on consulting with legal before making any moves.

Our conversation sparked up a lively debate between myself and a few other leaders at a recent conference. Apparently while there are many opinions on this subject, there are few who have experienced this enough to know how to handle it. Okay, so how should you handle an employee who is arrested for a DUI? Here are three possible things to do:

• Focus on the FACTS only : This one should go without saying, but definitely merits saying again. Find out the facts of the situation- as much as you can- before making any type of decision. Does the employee drive for the company? Was he driving the company car when he was arrested? Definitely in the case of my friend, more information was needed before making a final decision. If indeed he was a driver for the organization, therein lies another problem indeed. He may need to be suspended until the case is resolved. If he’s not a driver, the employer could allow the employee to explain what happened.
• Determine the Affect on the Business (if any) : Will he/she miss any work due to days out in jail? Once I had an employee arrested for a DUI who spent 3 days in jail. The problem wasn’t the fact that she got the DUI- the problem came in the form of her missing 3 days of work plus an important tech conference the company had paid her to attend. While we didn’t have a policy that employees arrested should be automatically terminated, we did have one on job abandonment (which was 3 consecutive days unexcused absences of no call/no show). Apart from those types of details, how else will the organization be affected? If for example, the employee is in a senior position, works for the government or military, or works in the public eye (such as a newscaster), the company may figure the liability of having the employer look bad is not worth keeping him/her on.
• Look at the POLICY : Although I have never worked for one, some companies have handbooks with MANDATORY firing policies. This means that the conviction of a crime may be grounds for immediate termination. If your company has that policy, the arrest may still not be enough. You may need to wait for a conviction. Either way, you should still get the facts first (refer to point #1).

Beyond these points, the employer may need to determine if this is just a one time arrest, or if the employee may be suffering from alcoholism, which could be considered a disability. Also, will the employer be held liable if the employee consumed an inordinate amount of alcohol on the premises (think office party, company sponsored happy hour, etc.), and the employee then left and was arrested for DUI? There are no cut or dry answers to what to do if your employee is arrested for DUI. The best advice I can give is to focus on the facts FIRST before making any decisions. Please note that this advice is informational only and as always, seek competent legal advice from an employment attorney prior to making any decisions.