Question: One of our employees has been arrested but not convicted. It doesn’t appear he’s going to be released in the new future. Is it better to put him in an unpaid “leave” status or fire him?

The answer to this question depends on a number of factors. The law generally prevents employers from taking action, or refusing to hire employees, based solely on arrest records, as opposed to actual convictions. However, if you have additional evidence or information which corroborates the reasons for the actual arrest, which independent evidence would tend to establish that the employee is guilty of a crime which is job related and which would render him unsuitable for the position in which he is employed, you would be on solid ground in terminating the employee based upon the totality of the available evidence and information. Additionally, to the extent he will be absent for an extended period, if you have strict attendance policies, or no-fault attendance policies, you will have grounds to terminate the employee based upon violation of your attendance policies, as incarceration is not a legitimate excuse for an employee’s failure to show up for work in compliance with your attendance policies. If you determine that you will not terminate the employee, at the very least you should place the employee on unpaid leave pending resolution of his criminal case.