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WALLSTREETFIGHTER
WALLSTREETFIGHTER, Attorney
Category: Legal
Satisfied Customers: 16006
Experience:  14 years experience in representing clients, current member of legalshield, legal club of america, NYSUT and UFT attorney
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We need new language for our employment applications. The company

Customer Question

We need new language for our employment applications. The company has chosen to remove the "Have you ever been convicted . . ." question from the application but we have these objectives still:

1) we want them to know we will check criminal history (but not credit checks or anything)
2) we want to encourage them to self-disclose whenever possible
3) we DON'T want them to think they will automatically be rejected if they have a criminal history.

Need language. Can you help?
Submitted: 1 year ago.
Category: Legal
Expert:  WALLSTREETFIGHTER replied 1 year ago.

WALLSTREETLAW :

Hello I am a licensed attorney. I am here to help answer your questions. Please do not hesitate to ask for clarification

Customer :

I need language options for our employment application. Can you help?

Customer :

I need to offer options to my management - multiple

WALLSTREETLAW :

yes,

WALLSTREETLAW :

Why don't you want to ask if they have had any convictions?

Customer :

2012 EEOC Guidance discourages on the front end. A candidate needs to be considered for employment based on teir credentials and if a criminal history surfaces later whether or not the offense is job related and creates issues from a business necessity are critical decision points. Are you familiar with the EEOC's 2012 guidance?

WALLSTREETLAW :

Yes,

WALLSTREETLAW :

but the EEOC does not prohibit employers from asking that question,

WALLSTREETLAW :

in fact it is still a common question,

WALLSTREETLAW :

what you need to do to protect yourself is to state clearly,

WALLSTREETLAW :

that a "conviction", is not a bar to employment,

Customer :

No, but you'll find it says best practice is to eliminate on front end. Yes?

Customer :

OK, I'm aligned. What's the appropriate language. Need a couple of options - my management responds best when they can pick. Help.

Customer :

I'm stepping away to lunch.

Customer :

Can i continue when I return at 12:45?

WALLSTREETLAW :

Yes, I will give you a standard clause which is used by many employers,

WALLSTREETLAW :

  • In Texas, asking only about "convictions" will not turn up some forms of alternative sentencing - for example, under the law of deferred adjudication, if the person given such a sentence satisfies the terms of probation, no final conviction is entered on their record, and the person can legally claim never to have been "convicted" of that offense – however, they would have pled guilty or no contest to the charge (such a plea is necessary in order to qualify for deferred adjudication), so if it is necessary (job-related) to know about about convictions and guilty or no contest pleas, the question would have to be rephrased – see the discussion directly above about the job-relatedness of an offense. In the case of Kellum v. TWC and Danone Waters of North America, Inc., 188 S.W.3d 411 (Tex.App.-Dallas 2006), the appeals court ruled that a claimant did not commit disqualifying misconduct by indicating that he had not been convicted of a crime, where the application asked only about convictions, and he had been given deferred adjudication.

  • Sample question about criminal history: "During the past (fill in the number) years, have you been convicted of, or have you pled guilty or no contest to, a felony offense? If yes, please explain in the space below. (Answering "yes" to this question will not automatically bar you from employment unless applicable law requires such action.)"

  • Try to consider only criminal history that is recent enough to be relevant, given the nature of a particular offense, the nature of the job, and the corresponding level of risk of harm - the remoteness of an offense is a factor in the job-relatedness determination noted above

  • To minimize the risk of an EEOC claim, and to be as fair as possible, try to keep the following in mind:

  • Prior involvement with the criminal justice system should never be used as a blanket disqualifier unless a statute or relevant agency regulation requires such a result.
  • Hiring decisions should be based upon individual characteristics, instead of stereotypes.
      1. The best advice for employers in this regard is really to follow the EEOC's guidance on job-relatedness determinations, as explained in this topic and in the last paragraph of the article "Job References and Background Checks" in this book.
      2. In general, there is no substitute for treating people as individuals and, to the extent possible, for taking the time to know more about a person than just what official records might show.
WALLSTREETLAW :

The above is the TX guidelines,

WALLSTREETLAW :

Best practices would entail the following:

WALLSTREETLAW :

1. Ask if the employee has ever been convicted of any felony in the last 7 years.

WALLSTREETLAW :

2. Ask the employee if their are any pending criminal cases being investigated.

WALLSTREETLAW :

3. Advise them if their is anything in their background they want to explain in detail that that may show up on a standard background check.

WALLSTREETLAW :

4. Make sure they sign an authorization for any background check, and state in bold face, a conviction is not an automatic bar to employment,

WALLSTREETLAW :

You should state that a criminal conviction will only be considered as part of your application to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

  • considering the nature of the job,
  • the nature and seriousness of the offense,
  • and the length of time since it occurred.
Customer :

OK. Still struggling. I like Item #3. We are leaning to a more conservative approach. Yes, we'll check but it won't be used against you unless:

  • considering the nature of the job,
  • the nature and seriousness of the offense,
  • and the length of time since it occurred.
Customer :

Need language.

WALLSTREETLAW :

I would not state it will be used against you

Customer :

yes, I'm referencing in generalities now. I need language - more than on option. Can you help?

WALLSTREETLAW :

In terms of language

WALLSTREETLAW :

You should state that a criminal conviction will only be considered as part of your application to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

  • considering the nature of the job,
  • the nature and seriousness of the offense,
  • and the length of time since it occurred.
WALLSTREETLAW :

This is the EEOC language,

WALLSTREETLAW :

Be aware,

WALLSTREETLAW :

if you do not ask questions 1, 2 and 3 you risk a potential negligent hiring case as well,

WALLSTREETLAW :

I would consider using all questions with the disclaimer,

WALLSTREETLAW :

and after every decision for employment, state the reason for the decision not to hire,

WALLSTREETLAW :

by doing this you protect yourself from any issues,

Customer :

In watching the recent litigation, negligtent hiring is less and less of an issue. However, we keep it in the forefront of our decisions.

WALLSTREETLAW :

Yes, it is rare, so are employees suing for discrimination based on criminal convictions, these cases are part of an overall discrimination lawsuit,

WALLSTREETLAW :

where minority employees claim a disparate treatment, due to having more minor criminal histories than others,

Customer :

Yes, we have a committee that reveiws all background screens if anything is identified. We feel this can offset the negligent hiring piece. However, we want to remove the question but need to ensure the critieria I identified previously: they know we'll check, they know the EEOC criteria, and they know it helps them to self-disclose (before we check).

Customer :

Are you in a position to help me develop the language? Or no?

WALLSTREETLAW :

I understand your concerns,

WALLSTREETLAW :

I have given you the language to accomplish what you want,and by providing a disclaimer you would be fine,

Customer :

Ok. Thanks,

WALLSTREETLAW :

Under federal law, employers may not ask applicants or employees about arrest records (as opposed to convictions) because a policy of making adverse employment decisions (i.e., not hiring an applicant, terminating an employee, denying a promotion) based upon an arrest record may be found to have a disparate impact on some minority groups.

Employers may ask about criminal convictions but should not have a policy absolutely barring employment because of any criminal conviction, as such a policy may be deemed discriminatory if the reason for the denial is not job-related and the policy has a disparate impact on a protected class.

WALLSTREETLAW :

In terms of language please understand, you can ask about convictions,

WALLSTREETLAW :

we are not allowed to draft an employment application for employees here, we offer general legal advice,

WALLSTREETLAW :

As an attorney with over 14 years,

WALLSTREETLAW :

I have provided you the way to have these questions asked and drafted,

WALLSTREETLAW :

Best practices would entail the following:

1. Ask if the employee has ever been convicted of any felony in the last 7 years.

2. Ask the employee if their are any pending criminal cases being investigated.

3. Advise them if their is anything in their background they want to explain in detail that that may show up on a standard background check.

4. Make sure they sign an authorization for any background check, and state in bold face, a conviction is not an automatic bar to employment,

1:07 PM

You should state that a criminal conviction will only be considered as part of your application to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

  • considering the nature of the job,
  • the nature and seriousness of the offense,
  • and the length of time since it occurred.
WALLSTREETLAW :

We are not allowed to draft legal documents here,

Expert:  WALLSTREETFIGHTER replied 1 year ago.
If you have any further questions please do not hesitate to ask.

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