How should you deal with an employee who has been arrested?

With a record number of Americans (2.2 million) currently being held in federal or state prisons and crackdowns underway nationwide against drugs and drunk driving, it is likely that your HR department will eventually find itself having to deal with an employee who has been arrested. Many organizations, however, are unprepared for such a situation.

Pepper Hamilton, a multi-practice law firm, offered seven tips for employers who may be confronted with the arrest of one of their own workers:

1. Don't act without getting good legal advice.Before making any decision on the arrested workers' job status, employers should first consult counsel and consider all available options, said Sean McDevitt, a partner with Pepper Hamilton, LLP. It's important that employers be aware of their employees' rights and always act in accordance with them. Making the wrong decision may result in a costly lawsuit, a disgrunted employee and even a demoralized staff.

2. Don't talk to uninvolved third parties, such as the media or non-management employees.Employees who do not have supervisory or decision-making status shouldn't be included in discussions related to an employee's arrest, said McDevitt. Unnecessary disclosure of information could potentially result in a defamation claim if the employee is later acquitted or the charges are dropped.

3. Determine whether the employee is covered by an employment agreement or a union contract. Employment or union contracts may limit an employer from pursuing termination or other disciplinary action. Where the arrested employee has an employment contract limiting the grounds for termination or the employee is covered by a union contract, the agreement's terms must be checked carefully. An employment agreement may have very specific reasons for termination and an arrest may not be among them.

4. Was the alleged offense major or minor?Companies may be more tolerant of alleged crimes involving poor judgment, such as a recreational drug possession type of charge, said McDevitt. However, an employer may be more likely to take disciplinary action against an employee accussed of a more serious charge involving violence or crimes of planning and calculation, such as dealing drugs or robbery.

5. Are you a big business or a small company?Bigger businesses are more concerned than mom-and-pop enterprises with the impact an employee's arrest may have on their brand identities and reputations, and therefore, will be more likely to impose a zero-tolerance policy, said McDevitt.

6. What potential impact will the arrest have on the rest of your workforce?Co-workers may be reluctant to work next to someone accused of a violent or other serious crime, said McDevitt. Some businesses may not want such a person selling their products or interacting with their customers.

7. Was the arrested employee treated fairly?Management must always be aware that other employees are closely monitoring the situation to see how it is being handled. They will be watching whether the employee's rights were protected, and if all the facts related to the case were uncovered before any disciplinary decision was made, McDevitt said. Ultimately, employees are concerned about how they would be treated by management if they are ever in the same situation.