Employees That Have Been Charged With a Crime

Whether an employer can take adverse action against an employee who has been criminally charged—but not yet convicted—is a nuanced legal question that depends on the nature of the charge, the employee's role, applicable state laws, and the employer's policies. A criminal charge is not a conviction, and many state and local ban-the-box laws prohibit employers from taking adverse action based solely on an arrest or charge without considering the nature of the offense, its relevance to the job, and the time elapsed. However, employers have legitimate grounds to act when the alleged conduct directly impacts the workplace—such as charges involving violence, theft, fraud, or conduct toward coworkers or customers. The EEOC has issued guidance cautioning against blanket policies that automatically disqualify employees based on criminal records, as such policies can have a disparate impact on protected racial groups. Employers should conduct an individualized assessment, consult employment counsel, and document their analysis before taking any action based on a criminal charge.

When an employee faces criminal charges, employers must navigate a complex intersection of federal guidance, state laws, and their own policies before taking employment action. The EEOC's 2012 Enforcement Guidance on the Use of Arrest and Conviction Records advises employers to conduct an individualized assessment that considers: the nature and gravity of the offense, the time elapsed since the charge or offense, and the nature of the job the individual holds or seeks. Many states have enacted ban-the-box statutes and fair chance laws that restrict when and how employers can inquire about or act on criminal history. Some states require specific notice procedures before adverse action is taken, giving employees an opportunity to provide context or evidence of rehabilitation. Industries with licensing requirements—healthcare, finance, education, childcare—may have separate mandatory reporting obligations or automatic disqualification rules that override employer discretion. A thoughtful, documented, and legally reviewed process is essential to avoid discrimination claims, wrongful termination suits, and regulatory penalties.

Placing an employee on administrative leave while criminal charges are pending is a common and often prudent risk management approach, but it must be handled carefully to avoid creating additional legal liability. Paid administrative leave is generally the safer option when the charges do not clearly preclude the employee from performing their duties—unpaid suspension may be considered adverse action and could be challenged. The decision to place an employee on leave should be based on objective factors: whether the alleged conduct creates workplace safety concerns, conflicts with the employee's responsibilities, or triggers mandatory reporting requirements in regulated industries. The leave should be framed as precautionary and non-disciplinary, pending the outcome of the legal process. HR should establish clear communication protocols, define the expected duration of the leave review, and document all decisions with the underlying rationale. Employers should also monitor the legal proceedings and revisit the leave status as facts evolve. Consulting employment counsel before implementing leave in response to criminal charges is strongly recommended.

HR policies addressing criminal charges and convictions must strike a careful balance between protecting the organization, complying with applicable law, and treating employees fairly. A well-drafted policy should clearly distinguish between charges (not yet proven) and convictions (legally established), with different procedures for each. For charges, the policy should specify that an individualized assessment will be conducted, considering the nature of the alleged offense, its relationship to the employee's job duties, and the risk to coworkers, customers, or the organization. For convictions, the policy must reflect applicable state ban-the-box requirements and the EEOC's individualized assessment framework. The policy should identify any roles in the organization—particularly those with fiduciary responsibilities, access to vulnerable populations, or licensing requirements—that may have stricter standards. Employee notification procedures and the opportunity to respond before adverse action is taken should be built in. All policies in this area should be reviewed by employment counsel given the rapidly evolving state legal landscape governing criminal history in employment.

Ban-the-box laws were originally enacted to prevent employers from asking about criminal history early in the hiring process, but their principles and requirements also have implications for how employers handle existing employees who face criminal charges or convictions during employment. In jurisdictions with strong fair chance employment protections—including California, New York, New Jersey, and many municipalities—employers must conduct individualized assessments before taking adverse action based on criminal records, considering the nature of the offense, its job-relatedness, and the time elapsed. Some laws require employers to provide written notice before taking adverse action and allow the employee time to respond with mitigating information. Retaliating against an employee for invoking their fair chance rights is prohibited. For employers in multiple jurisdictions, the complexity compounds significantly, as requirements vary widely at the state and local level. HR teams should maintain jurisdiction-specific guidance documents and ensure that managers know to escalate any situation involving employee criminal charges to HR and legal counsel before taking action.