How to Respond to an Employee’s Off-Duty DUI Arrest or Conviction

When an employee discloses an off-duty DUI arrest or conviction, employers must navigate a litany of workplace safety concerns, legal obligations, and fair employment practices. The appropriate response depends on the organization’s industry, the nature of the employee’s job duties, and applicable laws. Here are a few key considerations for employers when facing this situation.

Department of Transportation Requirements
In any DUI arrest situation, an employer should assess whether the employee worked in a position regulated by the federal Department of Transportation (DOT). Employees who fall into this category include those with Commercial Driver’s Licenses, as well as those in other safety-sensitive positions regulated by federal agencies such as the Federal Motor Carrier Safety Administration, Federal Transit Administration, and Federal Aviation Administration, among others.
Depending on the position, DOT regulations may require the employer or employee to report a DUI arrest or conviction. While an arrest alone may not be disqualifying from continuing to work, a conviction often is disqualifying. Employees in this category are also subject to strict return-to-duty procedures after a conviction, including substance abuse evaluations and testing. Employers should consult DOT regulations when employees in safety-sensitive positions disclose an arrest or conviction.

Negligent Retention
Even if an employee is not subject to DOT regulations, employers are obligated to maintain a safe working environment. Most jurisdictions recognize a claim for negligent retention, which arises when an employer retains an employee who poses a foreseeable threat of harm to others. An employer may be held liable where it continues to employ a worker it knew or reasonably should have known is unfit or dangerous and that worker harms another person.
In DUI situations, there is more potential negligent retention exposure for employers when an employee’s duties involve, for example, driving or operating heavy machinery. Employers should, therefore, evaluate whether the DUI affects the employee’s ability to perform their job safely and determine if additional precautions or employment actions are necessary.

Discrimination
An employer’s response to a DUI arrest or conviction must also account for federal, state, and local anti-discrimination laws. Guidance from the federal Equal Employment Opportunity Commission (EEOC) sheds additional light on addressing arrests and convictions.

• Job Relatedness: When evaluating a DUI arrest or conviction, employers should assess how the offense relates to the employee’s job duties. Employment actions should be taken consistent with how similar situations have been handled in the past to avoid discrimination claims.
• Arrests vs. Convictions: An arrest alone does not prove criminal conduct. Acting solely based on the arrest can create discrimination risk if employer practices are not applied uniformly and consistently. The EEOC advises that employers should focus on the conduct underlying the arrest to avoid discrimination issues. Convictions, on the other hand, are considered proof of criminal conduct. Whether considering the conduct underlying the arrest or the conviction itself, however, an employer should still focus on how the conduct relates to the employee’s job duties and ensure any action is consistent with other similar situations.
• Leave Requests: Sometimes, an employer may learn that an employee’s absence is due to jail time. If an employee requests unpaid leave to serve a jail sentence, the employer must consult its policies and past practices. Granting or denying leave in one situation while doing the opposite in another situation creates discrimination if the situations are similar. There must be a legitimate, non-discriminatory reason that justifies the different approaches.

Takeaways
Employers who learn that an employee has a recent DUI arrest or conviction should conduct an individualized assessment of the situation. Employers should consult any potential regulatory (such as those imposed by the DOT) or contractual obligations. Even in the absence of such specific obligations, employers should evaluate how the conduct relates to the employee’s job and how the organization has handled such situations in the past. As always, documentation is key throughout this process.

Given the nuances of these situations, consider consulting with legal counsel to mitigate risk. Employers Council can help members with this. Click here to learn how to become a member.