Terminate with Care
If a court process determines the employee will not be available to continue working, your problem is resolved. If on the other hand, the charge is pleaded out or perhaps the employee is only arrested for a suspended driver’s license and then released, you may want to reconsider firing the employee as they will most likely want to return to work.
You next option while the employee is on leave without pay is to seek the advice of a labor law attorney or a company that is capable of performing an investigation on the employee. If the investigation shows consistent or habitual arrests, and you have that backed up via your investigation, you will most likely be able to terminate the employee—based on the outside investigative report.
In cases such as these, keep the word “accused" in mind here. Accused doesn’t mean convicted and the accusation may be false or alleviated meaning the employee can return to work.
If you have had trouble with the employee at the workplace, keep in mind that it’s so important to document employee warnings. If the accused employee does and is able to return to work, look to those documentations and future documentations to terminate the employee the legal way and avoid an employee lawsuit.
Finally, if you are unsure of what to do because every circumstance is different, seek the advice of a labor law attorney that is experienced in employee termination and employment issues, especially in your state.