Criminal History and Hiring Termination

turbo · October 2003

Can a criminal history - being on probation or past offenses be used against someone when hiring them - if they disclosed the information in a job interview when asked if there was anyting else I should know about them - and that I may run a background check on them.

Two scenarios:

I have a part-time hourly employee (with me for one month- great worker and reliable) who was on probabtion for a traffic issue - one year probabtion- that he informed me of prior to hir hiring. He was picked up last week because he hadn't kept current on his fines because he didn't have the money. He spent 5 days in jail - his girlfriend called in to say he wouldn't be at work - trying to save his job because we have a no call, no show - no job policy.

He gets out today and we are told plans to come back to work the try to get his job back.. He is a good worker - but I don't want to set a precendent by allowing him to continue to work for us. I completed paperwork for voluntary termination due to missing 4 days of work, however - his manager wants to talk it over with him and give him another chance. Advice?

Scenario #2

Also, I have run a background check on another individual who has a recent bodily injury assault to a child - he interviewed for a maintenance position today that will put him in school environments 80 percent of his time repairing products. Can I not hire him based on his criminal record - he is on probabtion - plead down from a felony to misdeamenor.

Can you refuse employment because of criminal background?

Don D · October 2003

My advice:
Scenario 1: Follow your policy without regard to the jailing and without regard to the 'feelings' of the supervisor.

Scenario 2: Don't employ a person in proximity to children if he was convicted of intentionally injuring, molesting or abusing a child. Yes, you can use one's convictions against him in the hiring process. There will be lots of 'feelings' about whether or not you should, but the answer to your question is, you can. And no, you do not have to give him a reason.

turbo · October 2003

Thank you for the clarification. I appreciate your candor.

cthr · October 2003

Actually if you use a third party to conduct your criminal background checks, it falls under the FCRA and there is a form that you have to send them, informing them of the reporting agency and their rights under the FCRA.

cthr · October 2003

In scenario one, what grounds are you terminating the employee on? If it is the no call no show policy-you said his girlfriend called to tell you he would not be in, have you allowed other non-employees to call employees out before it they were unable to themselves. Also, convictions have to be job related, is this person driving for your company or using a company vehicle in the course of employment. I would tread lightly here and contact your legal counsel before terminating.

Don D · October 2003

unable to themselves. Also,
>convictions have to be job related,
>

Not so my friend, unless your state has a law to that effect.

turbo · October 2003

We have not allowed others to have someone else call in for them to 'save their job'....if they were sick they call in sick and come back the next scheduled day......plus he is being terminated because of excessive absenses.

He has been with us for about 30 days and he has now missed 4 days he was scheduled to work while in jail (another day for a family death)- plus he has been given time off to attend meetings with his paroll officer --we've given him lots of leeway. We have treated him with the utmost respect and he is a good worker..but the plot thickens.....we like him - but just because we like him we can't let him walk all over us and our policies.

His girlfriend also works for us - we didn't know they were girlfriend and boyfriend at the time of hiring - they are both hourly workers and work about 30 to 35 hours a week. (I asked the mother one day - when she was picking up the girl if the two knew each other and she denied it - but we have now learned otherwise)

He was origianlly hired to drive delviery on occasion (his violation was not posted on his record when I hired him..he told me about it because it had just happened) and at nights - since being hired he informed me that he does not want to work nights and that he and the other employee need the same shift because he is her ride to work..well..come to find out they are girlfriend and boy friend - they have told us so.

Since his recent brush with the law - she has managed to get a ride to work with her mother and she is getting her own vehicle. I don't want the two of them to work the same shifts anyway. He has all but said they must work the same shift. She is also under age..she is not 18 years old yet ..he is.

I would like to terminate him for excessive absenses - I am in the state of Texas an at will state. Can I do this legally?

HRsage · October 2003

Yes can do it, just base it on your policies and not on anything else. And you don't need to hire for the second scenario either, but you do need to follow FCRA rules if they apply.

turbo · October 2003

FCRA..fair credit and reporting?

HRsage · October 2003

Yes, it's required if you received consent for the check and you received the info via 3rd party, like cthr stated above. Good Luck.

turbo · October 2003

oh..no I don't use a third party, I use the Texas Department of Public Safety online Records Service.

I conduct it myself online Plus in scenari one he was orgiannly hired despite his priors (that hadn't shown up yet)...since they weren't job-related and its was probabtion for a misdeameor - no theft or violence..

HRQ · October 2003

Scenario #2: no way would I hire this guy. (I'm in childcare) What if he harmed a child? Try to defend THAT - knowingly hiring someone who has a history of this type of behavior. Our maintenance staff work largely unsupervised around the kids - with the teachers present, of course.

If you don't feel comfortable telling him you won't hire because of his criminal history, I'd just tell him you hired a more qualified applicant. You are not required to explain to him why you didn't hire him.

Hunter1 · October 2003

In WI, convictions have to be job related to be considered, and, HRQ, this would give you pause for thought: As I remember the case; ee loses job because he's convicted of injury to a child when he threw hot grease at his live-in, missed her and burned her 2 year old child. Gets out of jail and applies to work for the school district as a boiler operator. School district doesn't hire because applicant would be in a school, in close contact with children, and would work with chemicals. School district loses: Not closely enough related. Not enough close contact with children, not likely to use chemicals to harm children. I guess inability to control one's temper doesn't count.

marc · October 2003

I am with you on this HRQ. Our work also has close contact with children and families. Our application question asks if a background check would reveal any reason he/she should not work with children and families. We are also a mandated reported to Child and Family Services. There have been a couple of highly publicized cases where child care workers have been determined to have abused dozens of small children before they were caught. The danger and trama is too great to allow anything even remotely put the children at risk. Let the courts decide otherwise - if it gets that far. I say do not hire.

HRQ · October 2003

And really, you do not have to tell the applicant why you didn't hire him. :~~ Find another equally or more qualified applicant and your problem is solved.

I realize it's another situation if you've got a current staff member and you've recently learned of the conviction. Then it's time to decide which risk you'd rather live with: keeping someone on staff around the children, who has what your company feels is an unacceptable criminal history, or removing that particular risk and instead take on the possibility of catching it in court. This is the type of decision I'd want my bosses final OK on, but we make our decisions based on the safety of the children every time.

Don D · October 2003

Hunter: You're gonna have to convince me that in your state an employer cannot take the whole body of evidence into consideration when extending an offer or rejecting a candidate, including a record of convictions. That may be the policy of your municipality or civil service body; but, I hope it is not some state law prohibiting an employer from using sound judgement in rejecting persons with conviction histories. Who is going to be the final authority, if not the employer, in deciding which convictions might associate with which job positions?

Hunter1 · October 2003

Don: Unfortunately, you're wrong. It is a state law "prohibiting an employer from using sound judgment in rejecting persons with conviction histories". In Wisconsin, the COURTS are the final authority in deciding which convictions might associate with which job positions. Please read the article at [url]http://reason.com/9912/co.wo.reasonable.shtml[/url] If that doesn't convince you, I certainly can't.

Don D · October 2003

In that case, good luck to Wisconsin employers who will be running all these questions by some court clerk to get affirmation of whom they should or should not hire. Must have had a few 'crooks' in the legislature when that one skated out of committee.

cthr · October 2003

The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has ruled that automatically disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (These two groups have much higher criminal conviction rates than do Caucasian men.)

The EEOC has ruled repeatedly that covered employers cannot simply bar felons from jobs, but must show that a conviction-based disqualification is justified by "business necessity." The legal test requires employers to examine (1) the job-relatedness of each conviction, (2) the nature of the crime committed, (3) the number of convictions, (4) the facts surrounding each offense, (5) the length of time between the conviction and the employment decision, (6) the person's employment history before and after the conviction, and (7) the applicant's efforts at rehabilitation. According to the EEOC, the job-relatedness inquiry is the most important, and focuses on whether the job position applied for presents an opportunity for the applicant to engage in the same type of misconduct which resulted in the conviction (Bednar, "Employment Law Dilemmas," 11 Utah Bar J. 15 (Dec. 1998)).

Don D · October 2003

You use the words "automatic" and "simply barring" and no one of us probably advocates doing either.

At least several courts have disagreed with the EEOC's analysis of that, ruling that an employer, although obligated to concern himself with the job at hand and the offense history of the applicant, has no means of knowing such things as "The facts surrounding the offenses" and "The applicant's efforts at rehabilitation", also finding that to go down a path of querying an applicant on his rehab history would violate the EEOC's own prohibitions about questions related to private rehabilitation histories and potential ADA connections, and that it is not a natural connection to assume that having served time equates to rehabilitation.

There's no simple answer to this. Certainly the final answer is not that given by the EEOC's opinion statement as covered in the law journal you cite. The EEOC is not a Judicial body. They write and interpret regulations and give opinions and sometimes mediate or issue findings. An employer still has an obligation to protect itself and its customers and should exercise good judgement in deciding whom it employs. I don't suggest that an employer should 'automatically' exclude from the applicant pool anyone who has been convicted of a crime. Nor would I suggest an employer get wrapped up in mental exercises about how long ago the conviction was, how many convictions, how much time passed between each, what is his color, how did he rehab, or what is the probability he will do that while in my employ? Typically people with good judgement make good business decisions. And no employer is going to risk the assets of his/her company based on the writings of those who suggest he toss his business judgement to the wind. A skilled hiring authority can find multiple reasons for disqualifying an applicant.

cthr · October 2003

>
>You use the words "automatic" and "simply barring" and no one of us
>probably advocates doing either.
>
Those are not my words, the entire quote came directly from our State DOL regarding the hiring of those with criminal convictions. Our state is very pro employee. Those of us who ask about convictions on our application have to define what types of convictions do not have to be disclosed-they include: a finding of delinquecy or that a child was a member of a family with serivce needs, a crimnal charge that was nolled, a record that was erased, and a conviction for which a person was pardoned.

Also as part of this new ruling, employees cannot be terminated if they miss time from work to attend court proceedings related to a crime in which they or thier family member has been a victim. Basically, you have to hold their job open as long as the trial may take and in some instances that is years.

turbo · October 2003

replies have been great.

On scenario number one. The employee has been absent from work for 5 days of scheduled work. We have since made arrangements with another employee and hiring to fill his spot, by rescheduling another to daytime and hiring someone at night.

We are told by the girlfriend he is going to show up today to work - he gets out of jail today.

We intend to terminate him based on excessive absenses - we had to move on without him and have moved others in to fill his position. I am hoping he doesn't cause wrinkles.

We do have an opening for a nighttime driver - and on weekends, which is orignally why he was hired - but he after being hired told me no way was he working at night and on weekends. We needed him during the day - so we let it slide for a week or two - and we were going to talk with him about the schedule - when he landed in jail - so we didn't have the talk.

Do I offer him the nightime driving job? This will also separate him from his girlfriend - who is a 9 to 5 daytime worker for us. We want him to succeed - and don't want to add to his issues ...he was a good worker before neing absent and causing us to be short on labor for these days.

Can I ask him for his parole officer's name and number to confirm he has been in jail for the reason he wasn't at work? Do I go there? If someone where out for medical reasons for more than 2 to 3 days we require it.

Scenario No. 2 I have found another candidate who is far more qualified - and would like to hire him - trouble is the immediate supervisor for the position wants to hire the child offender - because he knows him and he is kind a friend (bad situation - I know). The supervisor does not know and will not be told about the child offense issue - as I know he will not keep if confidential and it will get back to the candidate. The internal stuggle begins.....

stay tuned for more on ...............As the World Turns.......

marc · October 2003

I beleive you can find your way to most of the answers you seek by re-reading this thread. For situation number 2, is the candidate going to be in a situation that would cause the conviction to be an issue for your company? If so, the answer is clearly not to hire him. Otherwise, determine first if he is the best candidate. If not, do not hire him. As to the first situation, does your company have a policy regarding eligibility for rehire? If it does, follow it. I would think you would want to explore the nature of the traffic problem that got this ee in trouble before considering him for a driver position. Once you have reviewed your policy regarding rehires or internal transfers and considered the individuals driving record, then decide if you want to tell him about the other job. Let him throw his name in the hat. If he does, then determine if he is the best candidate.

Don D · October 2003

I agree with Marc. Also, yes it would be appropriate for you to contact the probation officer. There is no prohibition in your doing that if it meets your business purpose, which it clearly does and the probation officer will have a positive reaction to your contact.

I'm beginning also to wonder about this 'traffic incident' you mentioned early on. People aren't usually placed on probation for a routine traffic incident. Have you determined if it was a DUI? Running from the cops in a vehicle? Running up on a sidewalk endangering people and garbage cans? Did it occur while on the job in another employer's vehicle? You have a driving opening and this offense would certainly play into my considerations if I were to have the man driving for me....night OR day, regardless. If the job brings him into contact with minors I would not hire him in that job.

And, lastly, separating him from his sweetie and the supervisor's liking him are irrelevant issues.

turbo · October 2003

The traffic incident - he is a young black man - he was stopped on a traffic issue - he was told - however during the course of the stop the officer said he saw seeds in his car (very small town -suburb high income areas - and our establishment is in the high-end area) police decided they were marijuana seeds. He never received a traffic violation for the stop -however - his lawyer advised him to plead to misdemeanor on the 'seeds' in the car since it was his word against the police ...to keep the issue simple and go on brief probabtion and pay the fine. (don't know who his lawyer is)

He apparently wasn't able to pay the fine. I was told by the girlfriend that - that was what the arrest was for ....the warrant was out for him because his fine was over due (he is a minium wage worker).

I am not trying to defend him ..however, he has been honest and upfront with us from the beginning (and told me about the probabtion - even though it had just happened and didn't show up on his background check yet)I feel bad because of the circumstances...but as employer we are not his babysitter and caretaker and Do NOT want to set a precedent by taking him back after excessive absenses.

Before rehiring him - if he comes back and is interested - I will contact him parole officer.

earlru · October 2003

To scenario #1

You can terminate this indivdual under the no show, no call policy and if you are an at will employer and he is still on probation (depending on the length of you probationary period)terminate him and no reason need be given.

Scenario #2

You can terminate this person whether it be misdemeanor or felony if the person has signed a background release stating that a criminal background will be preformed. This gives them the opportunity to disclose activity which might show up before hand.
I would caution to have some sort of level you use to be considered a criminal activity. Traffic cases can be a grey area unless it is something like a DUI or reckless driving. Failure to appears or failure to pay fines is pretty slim and could lead toi possible litigation. It is best to use a 3rd party company to do the investigation this will help when it comes to staying within the bounds of FCRA requirements. One final note always give the person the chance to dispute the findings of the criminal background check, because some cases should not show up due to being dismissed or some other reason. Yet a clerk did not enter the information showing that or entered the wrong code. This has happened to our company before.

SandiF · October 2003

Turbo,

Re: Scenario #2 Why would you want to hire anyone who had done something so despicable? As Don mentioned, we have to make sure we are making good business decisions. I wouldn't dream of hiring someone with this background, whether they were around children or not.

turbo · October 2003

I don't want to hire him...the supervisor does..and I am HR. The manager is a long-time fried of they guy (from childhood) and has no idea about the results of the background..I am sure the manager will not keep the information confidential if I tell him the results.

I didn't want to hire him before the background check.....but the manager wants to give him a shot...I don't this is a private company...good'ole boy network. I am not hiring him and not giving the go ahead...

just needed to make sure I was covered on it ..in the event it did become an issue

SandiF · October 2003

>I don't want to hire him...the supervisor does..and I am HR. The
>manager is a long-time fried of they guy (from childhood) and has no
>idea about the results of the background..I am sure the manager will
>not keep the information confidential if I tell him the results.
>
>I didn't want to hire him before the background check.....but the
>manager wants to give him a shot...I don't this is a private
>company...good'ole boy network. I am not hiring him and not giving
>the go ahead...
>
>just needed to make sure I was covered on it ..in the event it did
>become an issue

I'm glad you were able to make that decision.

Don D · October 2003

When I run a background check or have one run, the results do not belong to me and I have not paid for them. They belong to the company and I am a steward for the company (I sound like Pork here). I do not have the right, inclination or luxury of holding the results to myself in such situations as you are now in. You owe it to the company to tell the hiring authority or manager or whoever is top guy there that there is a problematic background result or that you have information that would possibly affect the company's decision. Since you are not the hiring authority, you have an obligation to NOT withhold vital information that would affect the decision. Whether or not the manager holds it in confidence is his problem, not yours.

Your scenario #3 might well be: I had vital information and failed to release it to company officials. They hired a guy because I kept quiet. Now this employee has a second or third offense and has molested someone. Can they really fire me for that?

I won't even comment on the tale of two seeds. That's a weak one.

turbo · October 2003

I informed the Director of Operations -- the manager's supervisor - we both agreed that the supervisor could not keep it confidential and not to tell him

Criminal History and Hiring Termination

Comments