Please help, I'm in background check jam!
kristankat03
14 Posts
I have just hired an employee and ran a background check to discover they have not been convicted yet, but have some serious charges pending hearing. Some of the charges are assault in the 1st & 2nd degree and theft over $500 (to name a few). Technically, they did not lie on the application b/c they have not yet been convicted or pled guilty. I really have no grounds for termination, but don't want to employ someone who has the potential to commit these types of crimes. What do I do? Can I make an agreement with the employee that if they are convicted of these charges they will be terminated? How would I handle this situation? Also, does anyone know if I can run a background check before I actually hire the applicant in the state of Maryland?
Comments
The EEOC frowns on using criminal conviction records as a litmus test for hiring. That is, using a conviction record in and of itself to determine someone's employability without taking other factors into consideration (e.g., age of the conviction and job-relatedness of the crime, et al. However, at this point, you don't even have a conviction, which is scarcely better than basing the hiring determination on arrest records, which is definitely a no-no because populations are not arrested in the same proportions. I would say you are taking a considerable risk in making a determination at this time, having already made the job offer, and in what appears to be the absence of written policy on handling background checks.
You can hire someone and make the offer contingent upon successful completion of a background check and then rescind the offer or terminate employment if the background check reveals disqualifying information. If you didn't do that at the time of hire, there is more risk associated with a separation than with the document in-hand. However, it's not best practice from a risk management perspective to rescind an offer or terminate employment based on charges pending, particularly in the absence of written criteria about the Company's standards regarding background check information. What if the person ends up on probation (no conviction) or is actually found innocent? Additionally, some states outlaw the use of anything but actual convictions for consideration in employment decisions. I would guess that Maryland would be on the employee protectionist side of things in this regard but I was not able to find anything on this through my resources.
Also, did you obtain permission to do the background check in compliance with FCRA requirements? If not, I think you may be dead in the water already since the background check itself wasn't obtained without risk of liability to begin with. "Sir, I'm going to rescind your offer of employment based on crimes you have not been convicted of that I discovered in a background check that you did not approve."
All that being said, I'm sympathetic to your situation and I suggest you meet with legal counsel to find the best resolution.
What type of position is this person being hired for?
You can run a backgrounnd check post-offer in MD. Here is what the MD Law says on Background checks (http://www.dllr.state.md.us/oeope/preemp.htm):
Lawful - "Inquiries about convictions that bear a direct relationship to the job and have not been expunged or sealed by the courts. Consideration should be given to the nature, recentness and rehabilitation." Unlawful - "Inquiries about a candidate's general arrest and conviction record."
The issue here is that the person has not been convicted of these things. You would be making an adverse employment decision based on a arrest and not a conviction. Remember innocent until proven guilty. I would seek legal advice as to where to go from here. If your employer deals with children or the elderly there are certain things you must do as well.
You have to remember that if the applicant said no to these questions on his/her application, that in this case they have not lied. According to your first email they have not been convicted of anything.
I have rescinded an offer for candidates that answered no to a question similar to yours, but came up with a background check that revealed numerous guilty convictions.
In your case, I really think you need to discuss with legal counsel before you decide what to do here. This person has not been found guilty of anything.
I've fired people for lying on their application plenty of times. It is helpful if the application itself stipulates that you can be dismissed for providing false information on the application.
I'm in 100% agreement with IT. Check with your attorney: you don't have a conviction.
I am not sure of MD law, but you might considering changing your application to ask whether they have pending charges. That is what we have and it is very helpful. I also strongly believe in getting a good HR attorney to help with items like this...saves lots of money eliminating potential lawsuits.
It is illegal in MD to ask about a candidate's general arrest record. In fact, as I look over a spreadsheet I have of all the states, it is illegal to ask a question like this in many states.
I have been told by attorneys in the past that your safest bet is to only ask about convictions (some will tell you only felony convictions) and only consider if related to the job. Yes I know the fact of having someone on your team that could have possibly done some bad things (but have not been convicted yet) is not something that makes you sleep easy. But you have to consider the flip side of things. What if the person is completely innocent and has been wrongly accused? Before you say that's probably not likely, I would say think again. I know of someone right now that has this hanging over his head. This has the potential to stay with him the rest of his life. He has a great attorney and is fighting this for all he is worth.
To the OP - let me ask you this question - have you done the reference check? If so, what did that say? Did they give you the standard info or were you able to find an employer that would actually give you a true reference check (yes that is hard to find these days)? Just curious if you were able to find out anything more about the candidate from this source.
No, I did not do a reference check which I should have done prior to offering the candidate the positon-hine sight is 20/20. I stopped doing them b/c I really did not get any information that helped me in my decision making. Since this particular incident I have to decided to start doing these again.
An update to this situation, the employee asked me about taking a day off to go to court for the "the charges". At that time I proceeded to ask him about the information I received from the background check. He did say he was innocent and is almost certain the charges will be dismissed, the only thing they have to link him to the crimes is his ATV; but the "victim" of the crimes is his ex-boss.......hmmm
No there is no law like this. Most states are at-will states, to which most employers talk about this in policy and in their handbook, stating that employment can be terminated by either party, for any reason. Just because your state is at-will doesn't mean that if you terminate someone that they will not try to sue you for wrongful termination (and try to say that you terminated them because of a protected status). Many attorneys will tell you that you should not use or have probationary periods. There are cases that have said because a company had a probationary period that there is an implied contract (meaning that once you get through this probabationary period, the job is yours) and therefore it makes the at-will statement null and void.
[quote user="IT HR"] No there is no law like this. Most states are at-will states, to which most employers talk about this in policy and in their handbook, stating that employment can be terminated by either party, for any reason. Just because your state is at-will doesn't mean that if you terminate someone that they will not try to sue you for wrongful termination (and try to say that you terminated them because of a protected status). Many attorneys will tell you that you should not use or have probationary periods. There are cases that have said because a company had a probationary period that there is an implied contract (meaning that once you get through this probabationary period, the job is yours) and therefore it makes the at-will statement null and void.[/quote]
What he said.
Often, people confuse what is practiced by their employer or their parents' employer with what is required by law. The "90 day probationary period" custom that was common at one time and that is still not unheard of today in some CBAs is not and never has been codified in any federal employment law. I'm not familliar with any state law to that effect, either. The only state to significantly erode "at will" status of employment in the absence of a contract is Montana.
It's important to understand that a perfectly legal dismissal under "at will" doctrine can still be challenged in court and can still result in the former employee succeeding in an unemployment insurance claim.
What he said.
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She [:)]
Good point about unemployment. I have seen many times where the a former employee will receive unemployment from the state even when they were clearly in violation of company policy and the employer had documented everything. And unemployment laws vary so much between the states that where an employee would receive unemployment in one state would result in no unemployment in another state.
What he said.
[/quote]She [:)][/quote]
Given the demographics for our profession, that was not my best guess. [:$]
In re-reading this thread, I think it brings us back to one of the basics: the process of organizational entry is really, really important. The better your company is at attracting, selecting, and retaining the right people, the better off the company is over all in every aspect. It has been argued very strongly that the only source of sustainable competitive advantage is an organization's workforce. It's so hard to correct a botched intake and so expensive to end up being stuck with a loser. Each hiring opportunity is a diamond set for cutting. Ham fist the job and you have junk. Get it right and, well, you have a gem.
TXHRGuy brings up a great point. All too often I think supervisors/companies want to get that vacant position filled and really don't take the little bit of extra time needed to make sure they have the absolute best candidate for the position. A couple extra days/week on the front end can save you months of heartache on the back end trying to get rid of that bad apple or having to defend a lawsuit.