RE: [BDSM-LegalIssues] New book -- good but disturbing
> It's as follows: Apparently, many companies have quietly
> instituted a policy of either not hiring, or quietly firing,
> any employee who has ever been *arrested* (note: *not*
> convicted, but merely arrested) for any reason whatsoever.
Those are two distinct issues: "not hiring", and "quietly firing".
The former is vaguely justifiable (if not laudable).
The latter is neither, and probably much rarer, and unlikely to be
implemented as Jay implies (i.e. firing, but rather in choosing who gets
"let go" when staff gets cut -- and that's ignoring the question of just how
the employer found out!). Of course, in many cases, arrests are tied to
drug use, and many organizations have (bizarrely) stringent anti-drug
policies that could be relevant to a decision to fire someone -- e.g. if the
arrestee admits possession at work in an attempt to show their innocense to
the charge under which they were arrested. In many other cases, the arrests
may involve driving offenses (particularly DUI) which have administrative
penalties (or insurance consequences) that are sufficient to lose someone
their job.
The bigger issue is that employers shouldn't ask the question, and risk
being in violation of state and/or federal anti-discrimination laws if they
do. Heck, automatic disqualification even based on _convictions_ is
problematic. (The "automatic" bit; any half-way competent organization
should be able to find achieve the same goal by other means...)
> I don't recall the rationale for this policy but I presume
> it's likely something along the lines of "where there's smoke
> there must be fire" thinking, along with thinking that people
> who have been arrested (apparently something like one person
> in four of the entire
> population) are more likely to be "problematic" employees
> than are people who have never been arrested.
Trivially: if someone has been arrested, and the prospective employer knows
that, the employer would be most unwise to NOT follow up and discover the
circumstances of the arrest, lest they become liable for damages if the
arrest turned out to have been justified, and the employee repeats the
act(s) that got them arrested in the first place. The follow-up incurs an
expense; if the prospect is one of several candidates, why spend the money?
I also believe the "one in four" number is entirely bogus -- an
extrapolation of a ratio in an "inner city" to the entire population, which
is obviously statistically goofy.
The troublesome part is, of course, people who were arrested but never
charged for good reason, as opposed to those who were arrested but not
charged for reasons such as a complaining witness opting not to press
charges or some kind of procedural mishap that makes a conviction
improbable. For the rest, there is smoke, and investigating the presence or
otherwise of fire is a non-trivial and not inexpensive exercise.
> Apparently, companies can purchase access to the National
> Criminal Information Center (NCIC) databases and can now
> "run" somebody as part of routine pre-employment or ongoing
> screening, and if an employee pops up as ever having been
> arrested, out they go (or in they never get).
This is untrue. Companies can NOT "purchase access" to the NCIC. (See the
link Charmaine provided). Anyone doing so would violate 18 USC 1030, at the
very least. Certain types of companies (notably banks) can ask the FBI to
access the NCIC on their behalf, but that's a rather different matter....
Then, of course, there are security clearances. Few companies will submit a
candidate with an arrest record for a clearance, on the grounds that
investigating the circumstances of the arrest and the final disposition
costs substantially more than, well, not having to investigate that stuff.
Bottom line: don't get arrested!
> Jay
Malc.
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posted by Annja Sue at
1:08 PM
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