※ 발췌 (excerpts):
1. Texas Law Limits Liability in Hiring Employees with Criminal Records, Still Not Full Protection from EEOC (28 Aug 2013)
The Texas Legislature has taken an important step to help protect employers who are willing to give applicants with a criminal record a second chance. House Bill 1188, which takes effect Sept. 1, 2013, will limit the liability of employers who hire applicants with a criminal record. The new law provides that a "cause of action may not be brought against an employer, general contrator, premises owner, or other third party solely for negligently hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense."
HB 1188 will benefit both employers and those with criminal records who are seeking employment, who often have difficulty finding a job. According to the National Institute of Corrections, about 5 million Texa adults have criminal records and hundreds of thousands of Texans who are no longer on probation or parole have felony convictions on their records. As inmates leave prison and try to gain self-sufficiency, they are often met with resistance by employers who are concerned that hiring ex-offenders may expose them to liability.
( ... ... ) While the new Texas law will ease many employers’ concerns of potential liability for hiring applicants with criminal records, it will not completely insulate employers from all claims of negligent hiring or supervision resulting from employment of such individuals.
2. EEOC(U.S. Equal Employment Opportunity Commission)'s Tips for Small Business re: Criminal Records
3. Policy Options: Limiting Employer Liability When Hiring Individuals Formery Incarcerated (Philadelphia Work Inc.)
( ... ) Employers balance two challenges when considering hiring returning citizens: the possibility of lawsuits for discriminatory hiring practices and the concerns over negligent hiring claims. This brief addresses the concerns we hear from employers about hiring a formerly incarcerated applicant and the potential for a negligent hiring lawsuit. Recognizing employer concerns, some states have adopted negligent hiring protections that limit emploer liability associated with hiring returning citizens. Pennsylvania has not adopte any such legislation.
Philadelphia Works has identified 12 states that have passed the laws to limit employer liability when hiring formerly incarcerated individuals. The three common approaches are:
- (1) Limit the use of an employee’s criminal history as evidence during a trial unless the nature of the criminal history bears a direct relationship to the facts underlying the cause of action (e.g. Colorado; Minnesota);
- (2) Establish a state-issued certificate which functions as a bond to protect the employer by a presumption of due care as long as the employer knew a candidate had such a certification at the time of hiring (e.g. Georgia; Illinois; North Carolina; Ohio; Tennessee) ;
- (3) If the employer has complied with the law to conduct a criminal background investigation, the employer is presumed not to be held liable for negligent hiring under certain circumstances (e.g. Florida; Massachusetts; New York).
( ... ... )
4. STANDARDS FOR HIRING PEOPLE WITH CRIMINAL RECORDS
As discussed in more detail below, advocates in states that do not have anti-discrimination legislation should encourage the passage of laws that prohibit employers from refusing to hire applicants simply because they have been arrested or convicted and require employers to individually assess the qualifications of people with criminal records.
(Important note: Federal courts have ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from imposing blanket bars to employment of people with conviction histories. Coming soon, you will find more information in the Legal Action Center’s toolkit Enforce Anti-Discrimination Laws.)
5. Background Checks in the Hiring Process: A Guide for California Nonprofits and Small Business (Revised Jan 2017)
( ... ) The challenge for the employer in addressing these important hiring goals is to make sure that any background check process accurately measures these qualities without unfairly discriminating against any applicant or otherwise breaching the law. ( ... )
Why Might an Employer Perform a Background Check?
Depending upon the particular background check process implemented by the employer, the check ^may^:
4. STANDARDS FOR HIRING PEOPLE WITH CRIMINAL RECORDS
As discussed in more detail below, advocates in states that do not have anti-discrimination legislation should encourage the passage of laws that prohibit employers from refusing to hire applicants simply because they have been arrested or convicted and require employers to individually assess the qualifications of people with criminal records.
(Important note: Federal courts have ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from imposing blanket bars to employment of people with conviction histories. Coming soon, you will find more information in the Legal Action Center’s toolkit Enforce Anti-Discrimination Laws.)
5. Background Checks in the Hiring Process: A Guide for California Nonprofits and Small Business (Revised Jan 2017)
( ... ) The challenge for the employer in addressing these important hiring goals is to make sure that any background check process accurately measures these qualities without unfairly discriminating against any applicant or otherwise breaching the law. ( ... )
Why Might an Employer Perform a Background Check?
Depending upon the particular background check process implemented by the employer, the check ^may^:
- corroborate that potential employees with access to confidential information or in a position of power over other individuals (such as senior managers and/or personnel in the finance; human resources, and information technology) are trustworthy;
- identify whether potential employees harmed third parties while under previous employment and therefore could be said to have a "propensity for violence;"
- reduce the risk of a violent or unsafe workplace;
- provide the employer with reassurance that the individual can be trusted around vulnerable clients or other vulnerable thrid parites;
- corroborate that potential employees were trustful in their application materials and during interviews.
Many employers not required by law to conduct background checks decide to implement such procedures anyway in order to avoid potential legal liability related to "negligent hiring," discussed below.
Performing a background check may also have some drawbacks, however, in that it may:
Performing a background check may also have some drawbacks, however, in that it may:
- discourage individuals well suited to a particular position from applying because of an offense committed in the past;
- give "false positives" due to incorrect information or clerical errors; either through duplicate names or through unearthing of expunged records;
- give employers a false sense of security with regards to workplace safety;
- have a disparate impact on populations that have higher rates of involvement with the criminal justice system.
( ... ... )
Negligent Hiring
In California, if an employer "... knows, or should know, facts which warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed," then the employers is potentially liable for negligence in the hiring or retention of an employee if the acts of the employee result in harm to a third party while he or she is on the job or performing a job-related functin.[n3] A well-performed and well-tailored background check helps an employer understand whether a potential employee could reasonably be considered to pose a threat to third parties while engaged in a particular position. An employer's analysis of risk in light of the "particular work" is the key. For example, unsupervised access to vulnerable populations, sensitive information, or valuable property potentially can present "undue risk of harm ... ^in light of the particular work to be performed."[n4] When the employee does not have such an unsupervised access, however, the risk of
negligent hiring is minimized.
( ... ... )
6. Negligent Hiring (USLegal.com)
Negligent hiring is a claim made by an injured party against an employer based on the theory that the employer knew or should have known about the employee's background which, if known, indicates a dangerous or untrustworthy character. Pre-employment background checks, employee drug testing, and employment physical exams are some of the ways negligent hiring claims can be avoided. Roughly half of the states legally recognize that an employer is responsible for, and can be held accountable for, checking the background and references of any job applicant before placing that applicant in a position of high public contact. Employers have been found liable for negligent hiring or retention of dangerous or incompetent employees in most states, including ( ... ... )
Negligent Hiring
In California, if an employer "... knows, or should know, facts which warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed," then the employers is potentially liable for negligence in the hiring or retention of an employee if the acts of the employee result in harm to a third party while he or she is on the job or performing a job-related functin.[n3] A well-performed and well-tailored background check helps an employer understand whether a potential employee could reasonably be considered to pose a threat to third parties while engaged in a particular position. An employer's analysis of risk in light of the "particular work" is the key. For example, unsupervised access to vulnerable populations, sensitive information, or valuable property potentially can present "undue risk of harm ... ^in light of the particular work to be performed."[n4] When the employee does not have such an unsupervised access, however, the risk of
negligent hiring is minimized.
( ... ... )
6. Negligent Hiring (USLegal.com)
Negligent hiring is a claim made by an injured party against an employer based on the theory that the employer knew or should have known about the employee's background which, if known, indicates a dangerous or untrustworthy character. Pre-employment background checks, employee drug testing, and employment physical exams are some of the ways negligent hiring claims can be avoided. Roughly half of the states legally recognize that an employer is responsible for, and can be held accountable for, checking the background and references of any job applicant before placing that applicant in a position of high public contact. Employers have been found liable for negligent hiring or retention of dangerous or incompetent employees in most states, including ( ... ... )
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