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Are You Liable for Ex-Convict Employees

October 1, 1999
Related Topics: Miscellaneous Legal Issues, Featured Article
The candidate sitting across the desk from you seems eager to work, has agood attitude and strong references -- from a parole officer. Where do you gofrom there? Are former criminals worth the risk? In some cases, yes. In somecases, no.

"Companies should probably not take on this kind of risk if theiremployees are dealing with the public in person or handling money or sensitivedocuments," says Chrys Martin, an employment-law attorney withPortland-based firm Bullivant Houser Bailey. "It’s not worth the legalrisk." For example, if you hire a person with a history of violence, andthe employee attacks someone, you have increased liability. And it’s generallya company’s prerogative to refuse to hire someone with a record -- there areno national civil-rights laws per se covering that group.

But a few things to keep in mind: Some states do have these laws. InWisconsin, for instance, employers can’t refuse to hire a person simplybecause of arrest and conviction records. And if a conviction was decades ago,and the person has a clean record since, most courts would frown on using thisas a reason not to hire.

In many states, it’s illegal to ask about or refuse to hire because ofarrest records, theory being that a person may be arrested yet later ruledinnocent. Also, not hiring because of arrest could have an adverse impact onminority groups. Even refusal to hire because of convictions could have anadverse impact -- affecting more minorities than whites. But if the adverseimpact is job-related -- you refuse to hire people convicted of embezzlement foran accounting position -- you’re generally justified. And for tightlyjob-related convictions you may want to avoid hiring these employees altogether.It’s risky, for instance, to hire someone with a record of drunk driving to beyour new trucker.

But, depending on the crime, ex-convicts may be perfectly suited to work in atelemarketing or production position. Most experts will tell you employment iskey to keeping these people from repeat offenses.

If you decide to hire such a person, there are several things a company cando to protect itself from increased liability. First, practice full disclosure:Make sure you know about every conviction, not just the most recent. Talk to theparole officers, the district attorney, the work-release officer. They can giveyou the details you need. For instance, a conviction may look like nothingserious on paper, but it’s possible that it’s the result of a plea bargain-- the person pled to accessory to a crime, but was actually involved in anarmed robbery. Ask the parole officer if he or she deems the person a good risk,and whether the person is subject to any work restraints.

Once you hire an ex-convict, if you can have them not interact with customers-- or even work off the premises -- your risk decreases. Make sure thesupervisor knows so he or she can be aware in training, management anddiscipline. Courses in anger management, alcohol abuse or any related classeshelp demonstrate you’ve tried to lower the risks and can be helpful if anyproblems arise. "Every employee brings a risk," says Kerry Notestine,a lawyer with the Houston office of Littler Mendelson. "Assess your risks.Lots of criminals can be rehabilitated and need jobs so they don’t turn backto crime. There are good reasons for a company to consider this under the rightcircumstances."

Workforce, October 1999, Vol. 78, No. 10, p. 38-- Subscribenow!

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