Does my employer need to talk to a lawyer about this?
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Anonymous
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I offered someone a job contingent on background check. Background check revealed a felony (foodstamp fraud) charge from 7 years ago that was DISMISSED because the value of the foodstamps was returned prior to the court date. The applicant would have been very young at this time (I did not ask his age but found it on FB). The applicant told me he also has children that would have been newborns at the time of the charge. No legal issues since then, and a stellar job performance record.
I want to offer this person a chance to explain and then go to the CEO if I feel like I can give him a chance. My boss agreed, doesn't want to permanently crucify someone. HR disagrees, we are taking on a risk, and they think due to this behavior it is too risky. I am wondering if there are any legal implications we need to be considering. In DC, we could still deny employment even though the charge is dismissed right? |
Anonymous
| It's a risk depending on the type of job you are hiring them for. If they are a bookkeeper or handling money, I'd say don't hire them. Of course, you need to find another reason not to hire them because you cannot deny someone a job based on their record. |
Anonymous
"Of course, you need to find another reason not to hire them because you cannot deny someone a job based on their record" This isn't true, is it? Are you a lawyer? I believe that if you are convicted of a crime or have 'exchanged collateral' those are reasons to deny the job. That is what I could find online anyway. Since he paid restitution I would think that would qualify the exchange of collateral. |
Anonymous
| What does this crime have to do with their job? They have a stellar job performance, right? Isn't that an indication that they would do a good job? Unless the job involves processing applicaitons for foodstamps, I really don't see the relevance. |
Anonymous
OP here. I do not disagree with you. I am not the sole decision maker here. I want to make sure we are compliant with the law. |
cb21
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Definitely talk to a lawyer. By the way, looking up applicants on Facebook can expose you to a host of legal problems. For example, you now know the age of the applicant and that he/she has small children. What if you had found out that he/she is handicapped? Gay? Unmarried/married?
Those are all factors that you can not take into account when making a decision, but you now have access to. Legal minefield. |
Anonymous
| No. You told them you were doing a background check, you did one, and now you're concerned about what you found. You can make a decision not to hire based on what you found, as long as the decision is not based on the applicant's protected class (race/gender/national origin, etc.) Did the applicant lie or fail to reveal the information that s/he should have based on what you asked? If so, that is a valid reason not to hire right there, regardless of the record. But even absent that, you have the right not to hire. |
Anonymous
| I'm almost certain that "prior fraud arrestee" is not a protected status. |
Anonymous
I disagree with this. This is standard due diligence these days. You cannot ask about these things in interviews or discriminate based on them, but you're not prohibited from ever looking anywhere that would reveal someone's age, marital status, etc. Employers have the right to conduct research about potential employees. They're just not allowed to discriminate based on a protected status. |
Anonymous
| Arrestee? You could get arrested for anything in error. Is that even a real thing? You don't need to tell people if you have been arrested, only if you have a record. |
Anonymous
Thanks PP. I know that I'm not legally allowed to use that stuff against the applicant. Those facts all help the candidate in my view. The candidate volunteered the information about his children. Anyway when speaking to a lawyer I would not bring this up. |
Anonymous
| You can use a person's criminal record as a reason to not hire them in Va, Md and DC without consequence. That said, I don't think what you described is a reason to not hire the person. |
Anonymous
The employer actually could ask if an applicant if he's ever been arrested. Arrestees are not a protected class. It's unclear whether OP's employer asked about arrest records. If they only asked about convictions, then this applicant wasn't obligated to disclose. Having said that, once the employer finds out about the arrest, they can easily decide not to hire him. Their call. Bottom line, do speak with a lawyer. I don't think the concern is whether it's legal not to hire him because of the arrest. That's fine. The bigger question is whether it's good practice to discuss it with them and then for any reason whatsoever you decide not to hire him. If he feels wounded or angry about it, he could then try a discrimination claim relating to a protected class. Even if it's not true, doesn't have a good basis, and he's unlikely to win, it's still a hassle/cost/reputation issue to deal with. As an attorney (not an employment attorney) who does hiring, I'm not sure I'd ask him about it directly. I'd still consider him for the job if he was otherwise qualified. You say he has a good work history and performance--how much does it relate to what he'd be doing for you? If it translates, I'd strongly consider him. It all comes down to whatever other candidates you have. |
Anonymous
BS, this just isn't accurate. It's true that you cannot discriminate based on certain factors. However, employers aren't prohibited from ever gaining access to information about these factors. Credit checks and many other regular employment screening tools have the potential to reveal all kinds of sensitive information about people, including protected class information. Obviously just showing up for an interview reveals a person's gender and that's a protected class. Employers aren't banned from knowing these things. You can't ask about these things specifically but you're not prohibited from ever finding out about them. It would be stupid not to look people up on FB and elsewhere, it can reveal a lot of legitimate factors employers would want to look at. |
Anonymous
Question 1 - when you say VERY young were they a minor? I think this would influence my decision. Question 2 - you say they were arrested and the charges were dismissed. Personal story, my husband was arrested for a felony - and the charges were dismissed. He is now a GS15 with a large federal agency (that requires clearance). I am glad people have not held this over him. |