Using Criminal Histories to Make Sound Hiring Decisions
| Publication year | 2008 |
| Pages | 57 |
| Citation | Vol. 37 No. 11 Pg. 57 |
2008, November, Pg. 57. Using Criminal Histories to Make Sound Hiring Decisions
November 2008
Vol. 37, No. 11 [Page 57]
Labor and Employment Law
Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.
John M. Husband, Denver, of Holland & Hart LLP (303) 295-8228, jhusband@hollandhart.com
Christopher M.A. Lujan is an Assistant City Attorney in the Litigation Section of the Denver City Attorney's Office, where he handles employment litigation in administrative hearings and complaints filed in state and federal district court chris.lujan@denvergov.org.
When making a hiring decision, the employer often will forgo a review of the job applicant's criminal history. This article discusses why it may be necessary to obtain an applicant's criminal history and how this information legally can by used to make informed hiring decisions.
Public and private employers often face critical hiring decisions. Although some employers make it a common practice to obtain information about job applicants' criminal histories before making hiring decisions, many employers routinely fill positions without the benefit of such information. This article addresses how employers can obtain criminal histories and legally use the information from these documents to make sound hiring decisions. Specifically, it discusses situations where it is lawful for an employer to use an applicant's criminal history to preclude employment, methods for obtaining criminal history records, and applicable federal and state laws.
From a liability standpoint, there are good reasons for obtaining an applicant's criminal history prior to making a hiring decision. The case law on negligent hiring and supervision claims holds that employers are liable for injuries caused by an employee when the employer knew or should have known of the employee's tendency to commit the behavior that caused the injury.(fn1)
The requirement to obtain a criminal history before hiring is tied to the duties the employee is expected to perform. For example, in Connes v. Mollala Transport Sys. Inc.,(fn2) the defendant was sued for negligent hiring when the employee, an interstate truck driver, sexually assaulted a hotel clerk. The Colorado Supreme Court held that the trucking company did not have a duty to review the employee's criminal history because the company could not foresee that the employee would create a risk to the public.(fn3) Although a duty existed to ensure that the employee could safely operate a truck, there was no duty to "conduct an independent investigation into [the employee's] non-vehicular criminal background in order to protect a member of the public."(fn4)
Justice Lohr's concurring opinion in Connes is instructive on when employers are required to analyze an individual's criminal history. Justice Lohr wrote:
The majority's conclusion does not foreclose the possibility of recognizing an employer's duty to investigate the criminal records of potential employees in other circumstances.(fn5)
This concurrence further notes that employers should make "individualized assessments" in determining whether to obtain criminal histories based on "the employee's duties and the extent of special access to vulnerable persons or valuable property" that the individual will be exposed to in performing the job.(fn6)
Thus, if there is a high probability that an employee will interact frequently with the public or handle valuable property, a prudent employer will obtain a criminal history and analyze the relationship between the criminal conduct and the position sought before determining if hiring is appropriate. Having this information before a hiring decision is made can help in defending the employer against negligent hiring or supervision claims.
There are a host of investigative firms employers can use to obtain an applicant's criminal history. Companies such as American DataBank(fn7) and Global Information Network(fn8) will obtain an individual's criminal history for a fee. Depending on the investigative firm selected and the level of service provided in performing the background check, the criminal history may consist of either the arrest record or the conviction record, or it may be a combination of the two. The level of detail that a firm provides in the criminal history should be clarified before selecting an investigative service. An employer also may retain the services of the Colorado Bureau of Investigation to obtain an individual's arrest record.(fn9)
The Fair Credit Reporting Act (FCRA),(fn10) passed by Congress in 1970, is the federal law that governs consumer reports and an employer's ability to use the information from these reports in making hiring decisions. Colorado has its own law, the Colorado...
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