It’s all the rage – employers high and low are concerned that their rights are being eroded by virtue of some grand plan to undermine the American employer through this recent legislation. Sorry conspiracy theorists but nothing could be further from the truth!
Actually when you look at the underlying theory of it, these laws make perfect sense and essentially forces a hiring manager to do what he or she should have been doing all along.
Granted lawsuits filed under this statutory discipline are fact-specific but generally, the concept should be an easy one for most HR professionals to assimilate — should you be seasoned enough to avoid the kinds of knee-jerk reactions that result in the promulgation of these ever-encroaching laws.
“Knee-jerk” in this case means that just because you learn that a candidate has been convicted of a crime that is no reason to categorically deny employment just because of the conviction unless the conviction clearly applies to the job description.
In essence what “ban-the-box” does is now force decision makers to apply logic and commonsense to the hiring process and, specifically, to reasonably and thoughtfully determine whether or not a particular criminal conviction applies to a given job description; as well as be able to justify any decision to eliminate candidacy based on a given conviction.
When we started APSCREEN in 1980, one of the many mantra’s we espoused to our clients was to apply appropriate ‘tests’ to determine if a particular conviction would affect the candidate’s ability to execute his or her duties and/or provide undue risk to the organization, the safety of customers, clients and invitees. We advised this basic principle because we felt that as the Reporter, we had a duty to advise our clients to use the records we provided judiciously and to not simply throw the baby out with the bathwater meaning that sometimes good people could be missed if more careful logic wasn’t applied to the hiring process.
In: ZAK K. SHIMOSE,vs.HAWAIII HEALTH SYSTEMS CORPORATION dba HILO MEDICAL CENTER, SCWC-12-0000422; the Court held that in order to use a criminal record in the determination of further candidacy:
“the conviction record (must) bear a rational relationship to the duties and responsibilities of the position.”
This seems to be the prevailing conclusion of the most of the courts around the country which generally favor the more thorough reasoning process in determining the applicability of a given conviction as it might relate to a given position.
Sound familiar? It should – since the courts in these instances are closely following benchmarks established in the EEOC’s April 25, 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII but are more liberally applying these concepts to job descriptions instead of simply limiting them to Title VII issues.
All that has really changed for the seasoned HR professional is that the justification used to eliminate candidacy can be more heavily scrutinized by third parties and ultimately, the courts.
Of course, as with any reasonable approach to such a law, it is important to be mindful (and not to be scared away from the extremely valuable tool of criminal background research) that even though what you decide may be second guessed in the future, NOT to forget that if a reasonable set of guidelines is applied, damages are usually minimized by the logic of the process and the reasoning.
In our view, even though you may be second guessed someday by a Plaintiff’s attorney or Court, if you use sound reasoning practices and sensible logic in your decisional process, while a trier of fact may not agree we believe that fewer or no damages will be assessed if the logic was not faulty; but rather ultimately determined to be a difference of opinion.
And don’t forget to apply the tried and true rule that clearly eliminates most potential problems in this and most other areas of the law, aside from whatever factors may influence your decision, always find the best and most-qualified candidate for the job based on ALL factors, not just one, or a few. That means you can still do what your gut tells you, just don’t let your gut be guided solely by what could later be determined to be an irrelevant criminal conviction.
Bottom line? Follow the law, carefully determine if a given conviction applies to any aspect of the proposed position, and make sure that if you do get rid of an applicant because of a criminal conviction that you document your reasons for candidacy denial based on it. Don’t let the law intimidate you.