Re: [BDSM-LegalIssues] New book -- good but disturbing
Correct me if I'm wrong, but isn't it flat out illegal for an employer to
ask about arrest. They can ask about conviction, felony or misdemeanor, but
not expunged, sealed, or pardoned offenses. Unless operating a motor
vehicle is part of work they can't ask about driving offenses. If you give
permission they can run a credit check. I don't know about past workers
compensation claims.
Now if a security clearance is required I believe they can ask about a lot
more stuff, including if you are a natural born citizen, much more than just
have a right to work in the USA. However I think they are required to state
that a security clearance is a requirement of the job.
Now as to what happens when they become aware of something after someone has
been hired, that is another matter. If it is contract work they have to
obey the employment contract. If it is at will, they can fire for no cause.
They would be very smart to refuse to state the cause or use some other true
fact as the cause. They would also be damn smart to limit those that are
aware of the information.
Now arrest is a very tricky one. Anyone can be arrested for being in the
right place at the wrong time. There are a lot of such arrests in the USA.
Those are the ones where the suspect is released because the DA refuses to
file charges. Doing anything on such a arrest is going to cost a company
dearly in damages. Again doing something on an arrest where the person is
found not guilty is again going to cost dearly in damages.
Now not mentioned are civil cases. UD Registry being a nice place to go
fishing.
And of course if the employer is the Government, there are no rules at all
unless the job falls under civil service or union contract.
Gary
On 12/23/07 1:08 PM, "Malcolm Weir" <malc@gelt.org> wrote:
>
>> 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
2:20 PM
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