Sometimes it’s good to revisit past issues, particularly when they become topical again. Over the past few weeks, we have seen and read about social media being used to find certain information about job applicants. The question remains out there, however, what can you do with the information once obtained? Even if you obtained the information appropriately. Back on September 30, 2010, I touched on the issue of prior criminal offenses, and what employment decisions can be made based on such offenses. The title there remains one of my most popular: “Can a former prostitute perform a job for you?” It is worth a reminder of the do’s and don’ts in this area.
One type of information that social media can help employers get is information on prior criminal history. And, there are employers who believe that they can simply refuse to hire someone if it is discovered that the applicant was previously convicted of a crime. But, as I’ve often preached, do not be trigger happy with the information you get.
Many states have laws that deal expressly with making employment decisions based on criminal history. For example, New York devotes an entire article in its Corrections Law to the issue, prohibiting a private or public employer from denying employment, or acting adversely with respect to current employment, based on an individual having been convicted of one or more criminal offenses, unless:
(1) there is a “direct relationship” between the previous criminal offenses and the specific job position sought or held; and
(2) hiring or continuing the employment of the individual “would involve an unreasonable risk” to property, or the safety or welfare of a specific individual or the general public.
And there’s more. New York’s law requires employers to consider eight very specific factors before determining that elements (1) and (2) above actually exist. Among those factors are the nature of the specific duties essential to the position, the elapsed time since the conviction and the age of the individual, and the seriousness of the particular offense. Under that statutory scheme, employers will ultimately be forced to prove that all eight of the factors were considered, and, upon request, must provide a written statement setting forth the reasons for refusing to hire an individual who was previously convicted of one or more criminal offenses.
Employer Take Away: What should you as an employer take away from this development?
It continues to be all about mindset. Your company needs to determine in the first instance whether and to what extent you want to (permissibly) seek certain background information about your potential or current employees. When you do obtain information, such as information about prior convictions, you must then consider whether your particular jurisdiction allows you to rely (in whole or in part) on that information. Don’t just act without thinking.