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Hiring healthcare workers with criminal backgrounds


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Can employers ask about their candidates’ criminal background?

According to the Equal Employment Opportunity Commission, an employer has the right to ask potential hires about their criminal background, yet cannot discriminate against them during the hiring process because of their record unless their records suggest that they could be a liability. This liability reasoning must be directly in correlation with the job responsibilities, such as an accounting firm considering hiring a candidate convicted for embezzlement charges.

Employers can ask about candidates' criminal history, but not discriminate based on this information. Employers can ask about candidates’ criminal history, but not discriminate based on this information.

Arrest records do not necessarily mean that candidates were involved in illicit activities, which is why many states have implemented bans for asking applicants about these records. Generally, it is only deemed appropriate for a manager to use arrest records to make a hiring decision if the arrest occurred recently, there is overwhelming reason to believe they committed the crime or if there is a relation between the reason for the arrest and the open position.

States have passed these restrictions as a way to provide equal opportunities for convicted felons and criminals in accordance with Title VII of the Civil Rights Act of 1964. When employers do access applicants’ criminal records, they must notify them due to stipulations mandated by the Fair Credit Reporting Act.

“In order to access a candidate’s criminal record, the employer must ensure the report is used for a permissible purpose, and have authorization to use the report,” Workplace Fairness, an advocacy and educational organization, explained on its website. “Before using a criminal record in a hiring decision, the employer must provide the candidate with a copy of the report and a summary of his rights.”

Many hiring managers conduct background checks to avoid negligent hires, decrease the chance of employee turnover and reduce the risk of liability in the event of a situation. Hiring ex-criminals in the healthcare industry has been hotly debated throughout the years. Much of this debate stems from stereotypes and fears from industries that deal with some of the most susceptible portions of the population: children, senior citizens and the mentally ill.

“Hiring managers conduct background checks to avoid negligent hires.”

In nursing homes in particular, this issue was recently contested in a Pennsylvania appellate court. Matthew Draper and Allison Feldstein reported on JDSupra Business Advisor that in the case Peake v. Commonwealth, the Older Adults Protective Services Act, which enforces a lifetime ban of elderly healthcare employment for select ex-offenders, is unconstitutional under certain equal employment laws.

According to the court’s decision, these healthcare organizations “should have the opportunity to assess the situation and exercise their discretion to employ an applicant found to be sufficiently rehabilitated and a good fit for the job.”

While this act was intended to protect the elderly from neglect, abuse or harm, the court concluded that employers should handle each individual on a case-by-case basis, to determine whether they are reformed and fit for the position.

Issuing background checks is left to the discretion of a company’s hiring policies. For hiring managers who want to hire the best candidate for the position, regardless of past mistakes, integrating pre employment into the hiring process will provide them with peace of mind and ensure them that the applicant possesses the skills needed for the job.