Most states and the EEOC ban questions about arrest records and restrict
the use of conviction records for new hires. Here are some ideas on how
to protect your employer against negligent hiring claims and still
comply with these restrictions.
During a recent management development seminar conducted by Car Dealer
Insider, the subject of job applicants with criminal records came up. It
seems that an increasing number of candidates have had a brush with the
law at some point and the sales and service managers in the seminar
wanted to know how to handle this sometimes delicate situation.
Their concern is grounded in reality. It is not unusual for dealership
salespeople, service advisors, and technicians to go for test-drives
with customers in the customers’ vehicles. Some dealers encourage sales
consultants to go to a customer’s home if that’s what it takes to close
a sale.
Many 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’ financial records, vehicles, or homes. Under the legal theory
of negligent hiring, an employer may be held liable for the violent acts
or wrongdoing of an employee if a manager 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.
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 a
dealership manager 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, the employer may refuse to hire an
applicant based on a conviction only if doing so would be inconsistent
with the operation of the business and consideration has been given to
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. That sounds good in theory, but
it’s awfully hard to put into practice in a employment setting.
Many states also allow employers to consider an applicant’s criminal
convictions, although some require consideration of whether the
conviction is job-related. For example, in New York, car dealers 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.
Based on the EEOC’s position and state laws, hiring managers should not
ask job applicants about arrest records. If asking about convictions,
the manager should clearly indicate that a criminal conviction does not
disqualify the applicant from consideration. Finally, to comply with the
EEOC’s restrictions, employers 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.
Be consistent
So, when considering employees with
access to customers’ records, cars, and 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, the
dealership manager 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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