Criminal background checks in hiring: policy and legal considerations

¶ … refusal to hire based on criminal background checks. The writer examines different issues of the topic, including what types of positions usually require the refusal to hire with criminal background, state and federal laws with regard to hiring or refusal to hire based on criminal background checks and a look at Maryland and its rules with regard to this topic. There were six sources used to complete this paper.

In recent years, employers have found themselves increasingly libel in the acts committed by employees. Whether the person is charged with a criminal act on or off the job, if that person is employed it often falls to the feet of the employer and a suit may follow. Because of this many employers across the nation have adopted policies in which criminal background checks are performed on potential employees and if they have any previous convictions, or in some states, any previous arrests they are barred from employment with that company or organization.

At the same time that employers are becoming more aware of their potential liability regarding the employment of ex-offenders movement is under way to increase the ability for ex-offenders to gain employment so that they can become productive members of society. The time has come to find a path in the middle that will allow ex-offenders to demonstrate their desire to be productive citizens while at the same time reducing the employer's potential liability for hiring such workers.

WHY

There are several reasons that employers run background checks on potential and actual employees. Criminal background checks can significantly reduce the potential for liability for an employer if the employee commits a criminal act while in that company's employment.

One example would be a man who worked for XYZ company and in the capacity of his position he had to work with and train underage staff members. If that employee working with those minors later was found to have molested those workers, or provided drugs or alcohol to them either on or off duty, the parents of those minors may decide to file suit against the company for subjecting their children to this person.

If it is later discovered that the trainer had a criminal history including convictions for child molesting or contributing to the delinquency of a minor the parents may find they have grounds to sue on the basis that the company should have checked out the person they were putting in charge of its younger workers.

Many companies do criminal background checks so that they can protect themselves against similar issues of liability. If the company does a background criminal check and finds that the employee has no criminal record the company will be more secure from a liability suit in the event something occurs with that employee.

Another reason that many companies perform criminal background checks is to protect their inventory and stock. If a person is hired who begins to steal from the company or embezzle funds from the company that money may never be recovered. It behooves the employer to do a criminal background check on potential employees in the effort to protect itself from theft.

WHAT ABOUT THE EX-OFFENDERS RIGHTS?

The ex-offenders in this country have a hard go of proving to society they have rehabilitated and want to become productive members of their communities. On the one hand they are told to locate and maintain gainful employment while on the other hand criminal background checks are easy to perform and are often an automatic denial of employment if something comes up during that check.

Many states are finding themselves between the proverbial rock and a hard place with the liability if they hire a convict and the potential for suit if they do not.

FOR INSTANCE

Wisconsin has in fact moved toward the mandating of what an employer can and cannot do when faced with an applicant that has a criminal record.

Wisconsin employers find themselves libel to the public if they hire a convict who commits a crime while in their employ and they also find themselves libel to the offender if they refuse to hire him or her based on a criminal background check.

The Equal Rights Division of the state's labor board has an entire department dedicated to the investigation of claims of discrimination based on background check employment refusals.

FEDERAL LAW

The federal statutes do not expressly address the discrimination against ex-offenders. At this time there is no law on the books regarding employers' rights and duties with regard to how they handle and process ex-offenders as applicants, however, there have been suits in which claims are made that a minority applicant's civil rights are ignored based on the fact that the applicant is of a race that is statistically more prone to arrests and convictions because of their race.

There are exceptions to the complacent nature of federal statute with this regard.

Harris, Patricia, Ex-Offenders Need Not Apply (http://ccj.sagepub.com/cgi/reprint/21/1/6.pdf)

In general there are some industries that are barred from hiring ex-offenders for any reason. This includes many public positions such as law enforcement or fire services personnel.

Congress has moved to support the refusal to hire ex-offenders in certain industries with many of the laws it passed that do not directly address the ex-offender applicant question. One of the laws is the mandate to revoke any driver license of someone convicted of a felony drug charge. This automatically precludes and prevents an ex-offender with drug convictions from gaining a position in which driving is required.

Overall the courts have sided with the employer's right not to hire ex-offenders based on the employer's right to be concerned with potential for liability both from a suit standpoint and from the standpoint that the ex-offender has a higher probability of offending the company with a crime than would someone be who had never been in legal trouble. Companies nationwide point to the return rate of criminals to prisons and jails as the primary defense for refusing to hire anyone with a criminal background.

Wisconsin law prohibits any employer from discrimination based on criminal background. The only exception is in the case where the actual position being applied for could be adversely affected by the nature of the offense the applicant was convicted of. An example of this would be a convicted child molester applying to work in a retail toy store. The employer in this case has the right to refuse to hire that applicant based solely on his criminal background. However, the same ex-offender applying to work in a factory could not have his criminal background held against him with regard to employment opportunities at that company.

OVERALL

The overall mandates for the state of Maryland include the right of an applicant to refuse to disclose any conviction that has been expunged and the employer cannot discriminate against that applicant for refusing to discuss such records. However, outside of that Maryland employers have the right to discriminate against convicted applicants on almost all other levels.

Currently federal law does little to protect applicants from such discrimination, and in fact supports it in some ways with its non-specific mandates that happen to prevent convicts from gaining employment in some sectors.

CONCLUSION

The topic of ex-offenders becoming productive members of society presents a circle of issues. The ex-offender is expected to obtain and maintain employment to show evidence of being productive, while employers are allowed to refuse to hire anyone who is an ex-offender. Some states, including Wisconsin make it illegal to discriminate against an ex-offender however, the company is still liable if it hires an ex-offender who then commits a crime while in that company's employ. The time has come to provide mandates that prohibit the discrimination against ex-offenders on a federal level, while at the same time allowing it if the crime conviction is directly related to the position sought, IE child molester applying at a toy store. In addition the time has come to limit the potential liability on a federal level of company's that do hire ex-offenders had provide them with a chance to become productive members of their communities after they have paid their debt to society.