Friday, August 15, 2014

Under arrest and out of a job?

Monday mornings are one of my favorite times to catch up on what’s happened over the weekend.  I dial into MSN, local news Web sites and Facebook to get my fill of current events before I get my week going.

This week was especially interesting.  Browsing through the news, I happened to see a link to a story on an person who had been arrested on charges of driving under the influence and hitting a pedestrian. While this might not be any big deal, the mug shot was of a co-worker to a close colleague of mine.

Visiting with my colleague later that day, she disclosed to me that she had received many reports, texts and e-mails notifying her of the arrest. Bear in mind this is not the person’s manager, just a co-worker. She said she was unsure how management would handle the situation, or how any employer should handle this sort of situation. It got me thinking.

Employees are people and so are managers. We all know no one is perfect. We all make mistakes, but what do you do when someone makes a mistake and is charged with breaking the law?

There’s really not an easy answer because there are legal liabilities that can be involved when considering a candidate for employment if they have been arrested or convicted of a crime.

There are certain state and federal laws that specifically state that if an individual is arrested or convicted of a crime they may not hold certain positions or occupational licenses. These are very specific in nature and most of the time they are carefully outlined to an individual during the pre-employment and hiring process. This makes it so employees and employers are on the same page that if Employee A is arrested or convicted of Crime B.  They will be terminated and cannot be employed (or hold a license) for Position C.

Outside of that, however, lies a very grey area for employers and employees. In making hiring decisions, an employer can take into consideration a candidate's criminal background. For example, if a candidate applying for a bookkeeping position had been arrested and convicted of forgery or fraud, it might be reasonable to expect an the employer would not hire the candidate for that reason.

In order for employers to cover their bases and lessen legal liabilities (and potential discrimination cases with the EEOC), a background check for applicants should be run, candidates should be provided with their rights under the Fair Credit Reporting Act, and a solid policy in place stating the convictions that disqualify candidates from employment should be in place. Just taking information off an application may not be the best course of action.

To help employers and employees understand these matters, the EEOC in 2012 released the Enforcement Guide on Consideration of Arrests and Convictions. Typically, employment attorneys and HR professionals are a good resource to visit with about best practices.

Keep in mind that hiring decisions based on arrests or convictions should be carefully considered. For this reason, most employers shy away from asking about arrests through the application process (convictions are a different story). This allows the employer to more fairly consider the conduct in relation to a candidate's fitness for a position.

But what happens if someone gets hired with flying colors but has a little too much fun one weekend and ends up in jail?  Next week we will discuss the impact an arrest may or may not have on current employment.

Monica Bitrick is CEO if Bitrick Consulting Group, a human resources company in Idaho Falls.

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