Amanda DeMatteis: Hi, Josh.
Josh Goodbaum: Hi, Amanda. What are we talking about today?
DeMatteis: We are talking about an employee who gets arrested outside of work, and they come to you and they say, “Hey, Josh. I really had this unfortunate situation happen. I’m really nervous that my job is going to find out and what the implications of this arrest are going to be. Am I going to get disciplined? Am I going to lose my job? What’s gonna happen?” What do you say?
Goodbaum: Well, you don’t have any obligation to tell your employer about your arrest, but arrests are a matter of public record, and employers often find out. The real question I suppose you’re asking is: Can you be fired for being arrested? And the answer to that is probably, legally yes.
Being arrested is not a protected status under our law, and it’s not protected conduct like asking for a reasonable accommodation for a disability or complaining about something illegal.
Now, if your arrest has to do with your work — if you’re a CFO and you get arrested for embezzling from a past company, for example — well, I think your employer is probably on pretty good grounds to terminate your employment. But if your arrest has nothing to do with your work — let’s say a DUI on the weekend off hours — and your employer terminates you anyway, well, then you might want to look at: Could this termination be a cover for something? Could this be an instance of discrimination, either because someone else at your work is alleged to have committed a similar infraction and your employer treated them differently, or because your employer followed a policy that has a disparate impact in the termination of employees because of their arrest?
Let me unpack that a little bit, Amanda. If an employer is terminating one employee for an arrest of a specific kind but not terminating another employee for an arrest of that same kind, and those two employees are in different protected categories — imagine one is white and one is a person of color, or one is older and one is younger, or one has a disability or one doesn’t — then that might give rise to a discrimination claim. That is called disparate treatment discrimination.
Likewise, we know that, in the United States and in many states around the country, there is a disparate enforcement of certain kinds of crimes. People of color tend to be arrested for certain kinds of things more than white people do, even where people of color and white people commit those crimes at the same rates. As a result, if an employer has a blanket policy that anyone who is arrested gets terminated, that policy might have a disparate impact on people of color without having any business justification. So that is another potential claim that a person who is terminated for being arrested could explore, and indeed, there have been disparate impact class actions directed at employers who said, “We’re just not going to hire anybody with an arrest record.”
Now, I want to distinguish a current arrest or a very recent arrest from a record of a past arrest or an erased criminal history. A record of a past arrest or an erased arrest implicates what is called Connecticut’s Clean Slate Law, and we have different materials about that on our website.
DeMatteis: Josh, another question we get on this very topic is whether or not an employee should proactively speak to their employer about a recent arrest: “Should I go to work and say, ‘Hey, this happened over the weekend,’ or should I hold it tight to the chest and hope that they don’t find out?” What do you think best practices are in that situation, knowing, of course, that employees in Connecticut don’t have an obligation to tell their employers about an arrest?
Goodbaum: That’s really gonna depend on the facts, Amanda. It’s gonna depend on how serious the alleged crime was, whether you’re arrested and are going to be held on bail, what your criminal defense lawyer thinks the odds of the defense are, and most importantly, I think, whether your employer is going to find out about it anyway. If they are, it’s probably best to tell your employer out of your own mouth than to let them hear it from somebody else. But again, that’s really gonna depend on the facts.
DeMatteis: So much of this is fact-specific, like a lot of the other videos that we have done.
Also, one other thing for Connecticut employees to think about is whether or not they have an employment contract that governs the terms of their employment. If so, there’s very likely a “cause” definition in the contract relative to termination. You’ll want to inquire with an employment lawyer whether or not an arrest constitutes “cause” under the contract or not. So, just another thing to think about if you’re in this unfortunate situation.
Josh, thank you so much for the information, and thank you all for watching. Take care.