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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Asking Applicants about Arrests and Convictions Q&A
Published by Personnel Policy Service, Inc.
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THIS WEEK'S E-TIP: Asking Applicants about Arrests and
Convictions Q&A
Most states and the EEOC ban questions about arrest records and
restrict the use of conviction records for new hires. Find out how to
protect against negligent hiring claims and still comply with these
restrictions. |
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THIS WEEK'S E-TIP: Asking Applicants about Arrests and
Convictions Q&A
Q: We have service employees who visit our customers'
homes. May
we ask applicants for these positions whether they have been
arrested?
What about convictions? We are concerned about our customers'
safety
and negligent hiring claims.
A: Most HR and legal experts agree that employers should
protect
themselves from negligent hiring claims by investigating the
criminal
background of prospective employees, particularly those who will
have
access to customers' homes. (Under the legal theory of negligent
hiring,
you may be liable for the violent acts or wrongdoing of an
employee if
you did not adequately investigate the employee's background or
qualifications, and the employee is later found to have a
history of
harmful tendencies.)
However, the type of information that may be gathered in
background
investigations, such as information on arrest and conviction
records, and
its use are restricted by the Equal Employment Opportunity
Commission
(EEOC) and state laws. Specifically, the EEOC takes the position
that
employers should not even ask about arrest records because of
the
adverse impact these inquiries can have by excluding minority
applicants.
In addition, several states specifically prohibit employers from
asking
applicants about arrests that did not result in conviction or
about records
that have been sealed or expunged. For example, the California
Labor
Code prohibits employers from asking about an arrest or
detention that
did not result in conviction. Similarly, the Illinois Criminal
Identification
Act does not allow employers to inquire into, or to use the fact
of, an
arrest or criminal history record that has been expunged,
sealed, or
impounded. |
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Records of criminal convictions often are treated differently under
federal
and state law. The EEOC has determined that an employer may inquire
about criminal convictions, but a conviction should not be used
automatically to disqualify a job applicant. In addition, even if you
can
show a direct relationship between the job and the offense, this
condition
may not be enough to disqualify the applicant. Rather, according to the
EEOC, you may refuse to hire an applicant based on a conviction only if
doing so would be inconsistent with the operation of the business and
you have considered all the circumstances. This consideration should
include the nature of the offense, its remoteness in time, the number of
convictions, the relation between the offense and the job, the
applicant's
employment history, and efforts at rehabilitation.
Many states also allow employers to consider an applicant's criminal
convictions, although some require you to consider whether the
conviction is job-related. For example, in New York, employers may
inquire into prior convictions but may not deny employment based on a
conviction unless the offense is related directly to the job or the
employment of the applicant would present an unreasonable risk.
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Based on the EEOC's position and state laws, you should not ask job
applicants about arrest records. If asking about convictions, you should
clearly indicate that a criminal conviction does not disqualify the
applicant
from consideration. Finally, to comply with the EEOC's restrictions, you
generally should only consider refusing to hire an applicant based on a
criminal conviction where there is a direct relationship between the
offense and the position sought, and when there are no mitigating
factors.
So, when considering service employees with access to your customers'
homes, any convictions showing violent tendencies, for example, likely
would be considered relevant to their jobs. Of course, in situations
where the relationship between a conviction and the
applicant's
potential
job are less clear, you may be faced with the dilemma of having to
choose between the lesser of two evils. The choice could well boil down
to weighing the risk of being sued for hiring discrimination by an ex-
convict versus a potential negligent hiring claim involving serious acts
of
violence. |
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^^^^^^^^^^^^^^^^^^^^^ From Your HR Matters E-Tips Editors
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on
CD can find more information on negligent hiring and using arrest
and
conviction records in Hiring, Chapter 202, note 25.
If you don't have the manual, but would like to order a trial
review, go to:
http://www.ppspublishers.com/ezppm.htm
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Information provided in HR Matters E-Tips is researched and reviewed
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