My Applicant Has a Criminal Record. Now What?

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Deciding whether to hire someone who has a past criminal record is not an easy process.  Federal law prohibits employers from discriminating against those with criminal records.  Conversely, one has to weigh the potential liability of having someone with a criminal conviction working at their company.  For many HR professionals, it’s a “damned if I do and damned if I don’t” scenario.

The following article provides a nice description of how HR professionals can take the overall question of “Should I hire someone with a criminal record?”, break it down and come to a decision they are comfortable with.  But, as with any question regarding the type of information that can or should be used to deny employment, employers should consult with their legal department to ensure compliance with both state and federal law.

If job candidate has a criminal record, ask questions

By Victoria Stagg-Elliott, AMNews Staff – August 10, 2009

If you run a background check on a potential receptionist, and you learn he was convicted of marijuana possession many years ago, can you still hire him?

Or what about offering a job to an otherwise strong candidate who, in answer to the application question, “Have you ever been convicted of a crime?” writes, “Yes, drunken driving, six years ago.”

Can you employ them? Should you? What are the risks if you do? What are the risks if you don’t?

Considering hiring someone with a criminal background, no matter how minor, is tricky. On the one hand, anti-discrimination laws prevent you from instituting a ban on hiring anyone with a criminal record. On the other, you could open yourself up to a negligent hiring lawsuit if it is determined that you should have known someone was at increased risk of causing harm to patients or staff.

This question is becoming more important, because background checks are easier than ever, meaning that job applicants are more likely to have this type of information disclosed during the hiring process even if the conviction is far in the past.

Also, the percentage of people of the labor pool who answer “yes” to an application question about past convictions is growing. According to the U.S. Dept. of Justice’s Bureau of Justice Statistics, in 2007 more than 7.3 million people, or 3.2% of adults, were on probation, in jail or in prison. The agency estimates that if trends continue, approximately one in every 15 people will serve time at some point in their lives.

“A physician has to be so careful,” said Linda Stimmel, a founding partner in the Dallas-based law firm Stewart Stimmel. “But I would not have any kind of policy on the subject. I would handle every hire on a case-by-case basis.”

So what should you do? Experts recommend asking these questions:

What was the offense? This is key, because a direct link between the crime and the work environment are strong grounds for not hiring someone. That’s because an employer could be held liable for negligent hiring. Employing someone with a child molestation conviction in a pediatrician’s office would be a clear example.

Most situations are not quite so clear-cut, but other questions may clarify the decision.

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