applicant with pending felony charges

Laura_L

We recently declined a job applicant for a technician position that requires in-home installation work for residential customers because the applicant has a pending felony murder charge scheduled for trial in January. We provided him with Adverse Action Notification under the Fair Credit Reporting Act and encouraged him to re-apply when the charge had been dispositioned.

He claims he's being unfairly discriminated against and that an arrest record cannot be considered - only convictions. Given that the charge is still open and given the potential risks with routing him through private homes each day, we think we've made the best decision. Are we at risk?

System

Question: Did he actually have an interview with your company? How would you treat a current employee who was facing a felony murder charge? (Applicants have less rights than actual employees, but if you would deny work for an employee in the same situation that would certainly help you.)

I hope one of our fine readers in the legal field answer this one for you because I'm not sure about your liability. However, I would have done the exact same thing.

Down_the_Middle

I personally share your concern and would NOT have offered this person employment until his disposition has been determined. There's a difference between being arrested and having your current felony case undetermined. Would you do anything different if he was arrested and released on his own recognizance pending trial???? Probably not. I think you acted responsibly and prudently and would let the courts determined his future suitability for employment.

PMI

I agree. Even if there were some sort of liability, I would ignore it and not hire. Can you imagine the liability if you went ahead & hired him and he committed a crime in a customer's home?

WOCO Frank

I'm not saying you didn't act prudently, but you may still face some difficulty. Typically, making a hiring decision based on an arrest is strongly discouraged because arrest frequency has been linked to race (adverse impact). The race or ethnicity of this applicant could affect your liability in this situation. Also, I'm not sure that the FCRA requires you to provide the applicant an explanation in this situation.

We face this issue frequently. To make matters stickier, under Missouri regs we are prohibited from employing felons in our largest class of employees. So we're in a catch-22... Federal laws make it difficult to not hire based on an arrest, but we know that a resulting conviction or plea on a felony charge can put us in jeopardy under state law. We require all applicants to sign an acknowledgment that they will be terminated immediately if they receive a felony conviction. Any applicant with pending charges that we decide is absolutely the best candidate for the job may be hired, but they sign a further release allowing us to run routine criminal record checks on them at their cost.

PS - As we all know, the easy way out is to not hire the applicant with a pending charge, and blame it on some other reason. I don't condone it, but I'm not saying it hasn't been done here.

Gar

I totally agree with Down-The-Middle. To take it a step further, if he was our employee and in view of the severity of the charge, we would give due consideration to placing him on administrative leave pending disposition of the matter.

System

You did the right thing, Laura_L. Whenever you send employees into customers' homes, you need to make reasonable efforts to weed out potentially violent employees. If your employee hurts or kills a customer, the jury will want to know whether you knew (or should've known) that the employee was prone to violence.

Generally, though, you shouldn't consider arrest records. If you normally do this, I think you should run it by a lawyer in your state. If you don't have one, you can look here:
[url]http://www.hrhero.com/findanattorney.shtml[/url]

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Theresa Gegen TX

I agree that you did the right thing. Even though the EEOC says that using arrest records to screen out applicants may result in discrimination based on race, murder is an extremely serious charge and you can't send someone into a home of a client who has that hanging over them.

Even though the applicant may file a charge of discrimination (and this is assuming that the applicant is a minority) I would not expect him to have much luck in making a case against your company on these facts.

Good Luck!!