EMPLOYERS Q&A: HIRING APPLICANTS WITH CRIMINAL BACKGROUNDS (“CB’s”)
QUESTION: If we hire someone with a CB, and he or she commits a crime at work, aren’t we liable?
ANSWER: Not unless the criminal act was foreseeable, which means that the employer had reason to believe that the applicant had the propensity to, and would be in a position to, commit the same or a similar act again. Michigan courts have interpreted this connection narrowly, such that it has been quite difficult for those pursuing action against employers for negligent hiring or negligent retention to demonstrate that the employer should be liable.
QUESTION: Is there any way to guard against a negligence claim based on hiring applicants with CB’s?
ANSWER: Yes, actually. At least in Michigan, if a former prisoner presents a “certificate of employability,” it generally represents a full defense for the hiring employer against a negligence claim.
QUESTION: Isn’t it just less risky to pass on hiring someone with a CB?
ANSWER: Not necessarily. Refusing to hire an applicant with a criminal background can potentially result in legal exposure for employers on a number of fronts:
· The EEOC has issued guidance on the potential for discriminatory impact by employers who refuse to hire applicants with CB’s. The EEOC expects covered employers to exclude applicants with criminal backgrounds only after conducting a targeted and individualized analysis that takes into account (a) the nature and gravity of the criminal offense; (b) the time that has passed since it was committed; and (c) the nature of the job sought. The EEOC likewise expects that any applicant who is to be excluded be given the opportunity to show why he or she shouldn’t be.
· In Michigan, excluding applicants based on a misdemeanor arrest is unlawful.
· More than 30 states and over 150 cities and counties have some form of “ban the box” law (which is designed to eliminate some or all questions regarding applicants’ criminal background record). Employers who ignore the rules of any jurisdiction where they employ people are at risk.
QUESTION: Ok, so what is our best course of action when evaluating candidates with CB’s?
ANSWER: There is no easy answer to this question, as each employer is different in terms of industry, nature of work, sensitivity of resources or information, risk-tolerance, core values, etc. It is clear that a “no hire” policy for applicants with a criminal background is legally risky and potentially unlawful. Before making a decision not to hire based on criminal record, we recommend that most employers—and certainly those with at least 15 employees—implement and enforce a policy that (a) considers the three factors the EEOC has identified; and (b) takes into account state or local laws protecting applicants with criminal backgrounds.
The information presented above by Miller Johnson has been prepared for informational purposes only and is not legal advice. In addition, it is a summary of some of the considerations involved with this subject matter and is not intended to cover all considerations. This information is not intended to create, and does not constitute, a lawyer-client relationship with Miller Johnson. Before acting on the basis of any information in this Q&A, please consult your attorney.