Employee Arrests and Bail: What Employers and Employees Need to Know About Workplace Rights in California

When an employee is arrested, it creates immediate legal questions for both the employer and the employee. Can an employer fire someone for being arrested? What if they miss work because they’re in jail? Do employees have to disclose their arrest? These situations are more common than many realize, and understanding the legal framework is crucial for protecting workplace rights and avoiding liability.

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The Legal Landscape: Arrest vs. Conviction

A fundamental principle in both criminal and employment law is the distinction between an arrest and a conviction. In the United States, everyone is presumed innocent until proven guilty. This presumption has important implications in the workplace.

Under California law, employers generally cannot ask about arrests that did not lead to conviction on job applications. The California Fair Employment and Housing Act (FEHA) provides significant protections, and more recently, California’s “ban the box” laws have limited when and how employers can inquire about criminal history.

However, these protections have nuances that both employers and employees should understand.

Can Employers Fire Employees for Being Arrested?

The short answer is: it depends on several factors.

At-Will Employment: California is an at-will employment state, meaning employers can generally terminate employees for any legal reason or no reason at all. However, there are significant exceptions to this rule.

No Automatic Protection: Being arrested does not automatically protect an employee from termination. If an employee is arrested and cannot come to work as a result, the employer may have grounds for termination based on absenteeism or job abandonment—not the arrest itself.

Prohibited Discrimination: Employers cannot terminate employees based solely on an arrest record without a conviction. Labor Code Section 432.7 prohibits employers from asking applicants about arrests that did not result in conviction, and this principle extends to current employees as well.

Conviction-Based Decisions: If an arrest leads to conviction, employers have more latitude but must still follow specific guidelines. Any employment decision based on criminal history must be directly related to the job in question. For example, a conviction for embezzlement would be relevant for a bookkeeper position, but a DUI might not be.

Industry-Specific Rules: Some industries have additional requirements. Healthcare facilities, childcare centers, financial institutions, and positions requiring professional licenses may have mandatory reporting requirements or disqualification criteria based on certain arrests or convictions.

The Practical Problem: Missing Work Due to Incarceration

The most immediate workplace concern after an arrest is often absence from work. If an employee is held in custody and cannot post bail, they may miss shifts, meetings, or deadlines.

Notification Requirements: Employees should notify their employer as soon as possible about their inability to work. While this may be uncomfortable, it’s generally better than unexplained absence. Some employers may be more understanding if they’re informed of the situation promptly.

Unexcused Absences: If an employee cannot make it to work because they’re in custody, employers may classify this as an unexcused absence. Many companies have attendance policies that allow termination after a certain number of unexcused absences.

FMLA and Leave Protections: The Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) do not cover absences due to incarceration. However, if the employee has accrued paid time off or vacation time, they may be able to use it.

Disability Considerations: If the arrest is related to a medical condition or disability (such as a mental health crisis or substance abuse issue), additional protections may apply under the Americans with Disabilities Act (ADA) and FEHA. Employers may be required to engage in an interactive process to determine reasonable accommodations.

The Critical Role of Bail in Employment Protection

This is where the bail system intersects directly with employment law. The ability to post bail and secure release from custody can literally save someone’s job.

Time-Sensitive Nature: Many employers have strict attendance policies. Missing even 2-3 consecutive shifts without notice can trigger termination under job abandonment policies. Getting out of jail quickly minimizes the employment impact.

Maintaining Communication: When released on bail, employees can personally contact their employers, explain the situation, and potentially negotiate time off or schedule adjustments. This is nearly impossible when incarcerated.

Work Performance: Employees who are released on bail can continue working while their case is pending, maintaining income and demonstrating to the court that they’re productive members of society. This can positively influence case outcomes.

Legal Representation: Staying employed provides financial resources to hire quality legal representation, which can make a significant difference in case outcomes—including potentially getting charges reduced or dismissed.

California Bail Bond Services and Employment Continuity

In California, the bail bond system is specifically designed to allow defendants to continue their normal lives while cases are pending. For someone facing criminal charges, maintaining employment may be critical not just for income but for demonstrating stability to the court.

The 10% Solution: California law regulates bail bond premiums at 10% of the total bail amount. For example, if bail is set at $15,000, a bail bond costs $1,500. While this is non-refundable, it’s often manageable for working individuals, especially compared to the potential loss of income from extended incarceration.

Speed Matters: Professional bail bond services operate 24/7 and understand that time is critical. The faster someone is released, the less disruption to their employment. Missing a Monday shift is very different from missing an entire week.

Geographic Coverage: In areas like Orange County, where there are multiple jail facilities across different cities—including Santa Ana, Anaheim, Fullerton, and others—experienced bail bond providers who understand local procedures can expedite release. For employees who need Newport Beach bail bonds, working with local experts can mean the difference between being released in 6 hours versus 24 hours.

Employer Best Practices When Employees Are Arrested

Employers facing this situation should consider the following:

Document Everything: Maintain clear records of attendance, performance, and any communications regarding the absence.

Review Policies: Ensure your employee handbook clearly outlines attendance policies, notification requirements, and how criminal matters are handled.

Avoid Discrimination: Do not terminate employees solely because of arrest. If termination is necessary, base it on legitimate business reasons like unexcused absences or inability to perform job duties.

Consider the Individual: If the employee has an otherwise good record, consider allowing them to use PTO or unpaid leave if they can provide information about when they expect to return.

Consult Legal Counsel: Before terminating an employee in this situation, particularly if they’ve been a long-term employee or if the arrest relates to a protected condition, consult with an employment attorney.

Industry Obligations: Be aware of any industry-specific reporting requirements or mandatory actions based on the nature of the arrest.

Employee Best Practices After an Arrest

Employees should take these steps to protect their employment:

Notify Immediately: Call your employer as soon as you’re able. Explain you’ve been arrested and when you expect to return. You don’t need to provide extensive details about the charges.

Secure Release Quickly: If bail is set, work to post it as quickly as possible. The longer you’re absent, the more risk to your employment. Using a bail bond service can facilitate rapid release when full cash bail isn’t available.

Use Available Leave: If you have PTO, vacation time, or other leave options, request to use them to cover the absence.

Document Communications: Keep records of all communications with your employer regarding the situation.

Know Your Rights: Understand that you cannot be fired solely for being arrested if it doesn’t result in conviction, but you can be fired for legitimate business reasons like excessive unexcused absences.

Seek Legal Advice: Consult with both a criminal defense attorney about your case and potentially an employment attorney about your workplace rights.

Focus on Performance: Once released and back at work, demonstrate strong job performance and reliability.

When Convictions Affect Employment

If an arrest leads to conviction, the employment analysis changes:

Job-Relatedness Test: Under FEHA and EEOC guidance, employers must consider whether the conviction is directly related to the job. A blanket policy of terminating all employees with any conviction is likely discriminatory.

Individualized Assessment: Employers should conduct an individualized assessment considering:

• The nature and gravity of the offense 
• The time that has passed since the conviction 
• The nature of the job in question 

Opportunity to Respond: Employees should be given a chance to provide context, evidence of rehabilitation, or mitigating circumstances.

Licensing Issues: Some convictions automatically disqualify individuals from certain licensed professions. In these cases, employers may have no choice but to terminate if the license is required for the position.

Record Sealing and Expungement

California law provides mechanisms for sealing or expunging certain criminal records, which can protect employment opportunities:

Expungement: Under Penal Code Section 1203.4, many individuals who successfully complete probation can petition to have their conviction dismissed. While not a true “expungement,” it does allow individuals to legally state they have not been convicted of that crime in most employment situations.

Automatic Relief: As of 2023, California automatically relieves certain criminal records after specific periods have passed without reoffending.

Employer Obligations: Once a record is sealed or expunged, employers generally cannot use that information in employment decisions.

The Intersection of Multiple Legal Areas

Employee arrest situations highlight how different areas of law intersect:

Criminal Law: The bail system, presumption of innocence, and criminal procedure rights.

Employment Law: At-will employment, discrimination protections, and termination standards.

Labor Law: Wage and hour considerations if employees are trying to use accrued time.

Disability Law: If the arrest relates to substance abuse, mental health, or other conditions covered by ADA/FEHA.

Professional Licensing: State board requirements and mandatory reporting for licensed professionals.

Conclusion: Prevention and Preparation

The best approach is prevention and preparation. Employers should have clear policies in place before situations arise, and employees should understand both their rights and obligations.

For employees facing arrest, securing bail quickly is often the single most important factor in protecting employment. The ability to return to work, maintain communication with employers, and demonstrate stability can preserve not just a job but an entire career trajectory.

For employers, handling these situations with care—balancing business needs with legal obligations and basic fairness—protects against discrimination claims while maintaining workplace standards.

Understanding how the bail system intersects with employment law helps both parties navigate these difficult situations more effectively, protecting rights and livelihoods in the process.

If you or an employee needs immediate assistance with bail in Orange County to minimize employment disruption, 1st Class Bail Bonds provides 24/7 professional service throughout Orange County. Fast release can protect employment and income during criminal proceedings. Visit 1stclassbailbonds.com or call anytime for confidential assistance.