Employers use job applications to seek information about conviction records. Criminal background checks are often performed before hiring an employee. Why? The reasons seem obvious, but unfortunately, how the information can be used is not.
Employers are stuck in a “holding cell” when it comes to addressing applicants and employees with arrests and criminal convictions. There is an ongoing debate in employment law circles regarding the information that employers should obtain about applicants and employees and how that information should be used.
The EEOC has issued guidance stating that employers should not ask about arrest records and should not use a criminal conviction as an absolute bar to employment. https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
Instead, the Commission encourages employers to consider the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct and/or completion of the sentence; and the nature of the job held or sought. These are commonly known as the “Green factors” based on language in an Eighth Circuit Court of Appeals case, Green v. Missouri Pacific Railroad, 523 F.2d 1290, 1293 (8th Cir. 1975).
Many states have enacted legislation to “ban the box” seeking information regarding arrest or conviction records on employment applications. According to National Employment Law Project guidance on “Ban the Box” or “Fair Chance” policies and laws, published in April 2018, eleven states (California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington) have passed laws prohibiting private employers from asking questions regarding an applicant’s conviction history on a job application.
There are times, however, when it is not in an employer’s best interest to employ someone with a lengthy rap sheet, arrests related to violent crimes, or drug or theft convictions. In addition to concerns about the safety of its employees and its assets, employers should also be concerned about negligent hiring and negligent retention lawsuits if the employee with an arrest or conviction record harms another employee or third party.
State law standards for negligent hiring and retention claims differ. Typically, however, in addition to the standard elements of a negligence claim (e.g. duty owed to plaintiff, defendant breached that duty, the breach caused the plaintiff harm or injury), the plaintiff must also prove that the defendant/employer knew or should have known of the employee’s unfitness for the job or of the propensity for violence, for example, that caused the harm. Some courts also appear to hold that an employer is responsible for an employee’s violent act if any employer knew or should have known of the employee’s propensity for violence, even if the employee did not share the information with the employer.
You may be thinking that a negligent hiring or retention claim should be barred by a state law’s worker’s compensation exclusivity provision if a worker injures a co-worker. In Mississippi, for example, federal courts would generally agree. State courts, however, may not be willing to dismiss a claim based on the worker’s comp exclusive remedy provision – finding a violent act against a co-worker does not “arise out of employment.”
So what’s an employer to do? Although there is no way to immunize an employer from a negligent hiring or retention claim, here are some steps that may help:
- Ask for conviction information on job applications if it is legal to do so in the states in which you have employees, but note on the application that it is not an absolute bar to employment.
- Include on the job application language stating that falsification of an employment application is grounds for not hiring an applicant and for termination of employment.
- Request criminal background checks from a credible source and carefully consider the parameters of the search. Some background search companies do not report convictions more than seven (7) years old but may be willing to provide this service for a longer period of time if you request it.
- Repeat background checks periodically on a non-discriminatory basis.
- Implement a policy requiring all employees to report an arrest or criminal conviction of their own and of a fellow employee.
- Confirm with your EPLI and/or General Liability insurers that negligent hiring/supervision/retention claims are covered.
- If you obtain information regarding an arrest or conviction, consider the EEOC guidance and the Green factors and consider consulting legal counsel.
There are no bright-line answers when considering arrests and convictions, but a well-thought-out, proactive plan can help soften the blow when faced with a negligent hiring or retention claim.
BUTLER, SNOW AUGUST 2018