Analysis Crucial When Hiring Workers with Criminal Records

Posted by Charles Middleton on 02/19/2015

Q: Can employers exclude applicants based on arrest records?

A: Employers shouldn't exclude individuals from employment based solely on arrest records. The Equal Employment Opportunity Commission takes the position that because statistics show that certain minority groups are arrested at higher rates, a policy excluding individuals with arrest records from employment could have a disparate impact on those minorities. Enforcing a policy that has a negative impact on certain minority groups may be considered unlawful discrimination, even if the discrimination isn't intentional.

Q: Can employers exclude applicants based on past convictions?

A: If a candidate has a record of a conviction, the employer must evaluate whether excluding the candidate based on the conviction is “job related and consistent with business necessity.” This requires the employer to compare the nature of the crime to the position for which the applicant is being considered to determine whether the applicant would pose an actual risk if placed in the position. The employer must also consider other factors that bear on the risk the individual poses such as when the conviction occurred, rehabilitation efforts, whether the applicant has held gainful employment after the conviction, etc. It's important to note that some employers may be prohibited by law from hiring individuals with specific convictions for certain positions. Examples of employers who might be affected include child care facilities, banks and construction companies with crews working within a certain distance of a school site, among others. These employers should make sure they fully understand the prohibition for their industry, and develop a policy that complies with the prohibition without going beyond it.

Q: Should employers be concerned about possible negligent hiring or negligent supervision claims if they hire someone with a criminal record?

A: Yes. However, an employer can protect itself against these sorts of claims by doing the careful analysis mentioned above. A negligence claim only will be successful in this sort of situation if the nature of the conviction puts the employer on notice that the employee might cause harm to another individual while performing his or her job duties. For example, an employer who hired a cable installer who had been convicted of serious traffic violations wasn't liable for negligent hiring when the cable installer later assaulted a customer. The court found that the crime didn't put the employer on notice that this individual might be dangerous to customers. On the other hand, a family oriented fast-food restaurant was liable for negligent hiring when an employee who had been convicted for assaulting children attacked a 3-year-old who was at the restaurant.


Published The Oklahoman, February 19, 2015