Q: One of our employees was arrested today. Can we terminate their employment?

A: We would recommend against terminating employment simply on the basis of an arrest. For one thing, the fact of an arrest is neither proof that criminal conduct occurred nor an indication that the arrested employee will be convicted of a crime. For another, basing employment decisions on arrests (and convictions) can have a disparate impact on certain racial groups. Note as well that some states also treat non-conviction arrests as a protected characteristic, meaning employers in those states are forbidden from considering those records.

The Equal Employment Opportunity Commission (EEOC) recommends that employers only make decisions based on an arrest if the underlying conduct makes the individual unfit for the position in question. But even then, the EEOC suggests that the employer give the employee a chance to explain the events and circumstances that led to their arrest. The employer is then in a better position both to assess the credibility of the employee’s account and to make an employment decision related to the underlying conduct rather than the mere fact of an arrest.