Employer’s Rights After an Employee Is Arrested for DUI

The Equal Employment Opportunity Commission (EEOC) cautions employers against taking disciplinary action based solely on an arrest. The employer, instead, should use a fact-based analysis to determine the underlying conduct and if there should be action taken based on a business necessity. The employer should allow the employee to provide an explanation for the arrest. The employer should also take certain precautions to limit potential liability. If driving responsibilities are part of the employee’s job and the employee is arrested for driving under the influence, then the employer may need to prevent the employee from driving or place the employee on suspension until the matter is resolved because the underlying conduct is job-related. The same may apply if the employee’s position is such that an arrest would bring negative publicity on the employer, or cause similar damage to the employer’s business interests.

If the employee admits to the underlying conduct that led to the arrest, if there is a conviction, or the employer determines there are facts that show that the claimant engaged in the unlawful activity, the employer may take appropriate disciplinary action. It is important for employers to consider identifying consequences for a conviction or proof of unlawful conduct in their employee handbooks. A consistent approach for all similarly situated employees is always a recommended practice for employers. Employers should contact an employment law attorney to discuss what disciplinary action may be appropriate.