One of your employees was just arrested… Or, you have become aware that a new hire was convicted of a crime… You can terminate the employee, right? Not so fast.
In the employment context, arrest records and conviction records are analyzed differently, and neither should be used to automatically bar employment. Presuming that you lawfully obtained information pertaining to an arrest or convocation record in the first place, here are the general rules:
Regarding arrest records, employers generally should not take arrest records into consideration when making employment decisions. After all, everyone is presumed to be innocent until proven guilty—which has not yet occurred at the arrest stage. This is the position taken by the EEOC, which enforces federal anti-discrimination laws. In addition, some states, such as Illinois, New York, and Wisconsin, offer additional protections to employees or applicants with arrest records. On the other hand, if you have independent information establishing that the underlying conduct that serves as the basis of the arrest did, in fact, occur, then that could be a different story.
Regarding an employee with a conviction record, employers should engage in an “individualized assessment” to determine whether the employee should be disqualified from employment. The major factors to consider are:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense, conduct and/or completion of the sentence; and
- The nature of the job held or sought.
These factors are commonly referred to as the “Green Factors,” because they came from a case called Green v. Missouri Pacific Railroad Co.
Employers should also allow the employee an opportunity to show why he or she should not be excluded from employment. For example, can the employee demonstrate that the criminal record is inaccurate? Were there mitigating circumstances? Were there rehabilitation efforts? Is there evidence that the employee has successfully performed the same type of work, post-conviction, with a different employer?
Other states, such as Wisconsin and New York, have more robust requirements to consider. For example, New York employers are required to analyze eight factors, including: the state’s policy to encourage the employment of those with previous criminal convictions; the specific duties and responsibilities necessarily related to the employment sought; the bearing, if any, the criminal offense will have on the ability to perform the job duties; the time elapsed since the occurrence of the criminal offense; the age of the person at the time of the offense; the seriousness of the offense; any information produced about the person’s rehabilitation and good conduct; and the legitimate interest of the employer in protecting property and the safety and welfare of others.
The bottom line is that employers are well advised to analyze arrest records and conviction records on a case-by-case basis and avoid policies that operate as a blanket bar to employment for individuals with criminal records. Since obtaining criminal background information may also implicate other laws—such as “ban the box” legislation, the Fair Credit Reporting Act, or other state-specific laws—please be sure to consult your local employment attorney for advice.
