Employers Beware: States Plan Early Release Programs Due to Budgets

Nick Fishman

Many states are discussing plans to early release a number of convicts from prison to make up for budget shortfalls.  California, for example has plans to release nearly 40,000 prisoners earlier than anticipated.  These people will be out and looking for gainful employment.  And while, they have every right to find work, employers must be vigilant by performing thorough criminal background checks.  Check out this story from BusinessInsurance.com

Ex-Convicts in Workforce Pose Liability Problems

California employers would be wise to take another look at their criminal background check policies in light of the possibility the state may be forced to release many prisoners early because of jail overcrowding, say some observers.

Many employers, particularly large corporations, already have such policies in place. Nationally, all employers must contend, though, with myriad state laws limiting how they may use this information as well as concern by the Equal Employment Opportunity Commission that these checks have a disparate impact on minorities.

In California, a three-judge federal panel has refused to delay a plan to release more than 40,000 inmates from the state’s overcrowded prison system. Gov. Arnold Schwarzenegger’s administration is appealing the decision to the U.S. Supreme Court, and the Legislature is considering the issue, but its ultimate resolution remains uncertain.

In light of the possible releases, “I think it’s a good idea to review company policies and decide what’s appropriate under the circumstances if it hasn’t already been done,” said Christopher W. Olmsted, an attorney with Barker Olmsted & Barnier P.L.C. in San Diego, who said he does not expect violent felons to be released.

Anthony J. Oncidi, a partner with law firm Proskauer Rose L.L.P. in Los Angeles, said, “the more reasonable employer should be more vigilant than ever about doing employment screening and background checks on applicants, because there’s going to be a number of unemployed, former convicted criminals dumped on the street who presumably will, among other things, be looking for a job.”

But firms should take care when constructing or amending background check policies, experts say.

One major concern of the EEOC is criminal background checks’ disparate impact on minorities, experts note. According to the Department of Justice’s Bureau of Justice Statistics, as of June 2008, with more than 2.3 million inmates held in custody in prison or jails, black males were incarcerated at 6.6 times the rate of white males.

“Studies reveal that some employers make selection decisions based on names, arrest and conviction records…all of which may disparately impact people of color,” says the EEOC in discussing its E-RACE initiative, which is intended to “identify issues, criteria and barriers that contribute to race and color discrimination.”

“You need to make sure there is a justifiable business need, a bona fide need, to screen people out” if hiring large numbers of people within a population in which there are likely to be those convicted of criminal offenses, said Brian T. Ashe, a partner with Seyfarth Shaw L.L.P. in San Francisco.

“The bottom line is, the government doesn’t want to see people with criminal records uniformly denied any job,” said Mr. Olmsted.

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Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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