On January 6th at the National CLE Conference, Partner at Pedowitz & Meister, Arnold Pedowitz, presented a paper with Gregory Sato, Partner at Kobayashi Sugita & Goda, entitled “The Use of Arrest and Conviction Records in the Workplace: Individual Rights and Employer Duties.”
In the paper, the pair argue that there is a fundamental challenge to the use of criminal records as a workplace selection tool. This conflict, they argue, lies between the importance of non-discriminatory hiring, especially in states which have passed laws prohibiting such, and negligent hiring, which opens up companies to lawsuits. The paper provides an overview of negligent hiring and Title VII guidance, discussing in particular the Guidance's three-factor test, before taking a more detailed look on a state by state basis, including how states view negligent hiring, arrest and conviction records, and the case law. States included are California, Colorado, Georgia, Hawaii, Illinois and New York.
The two find that a balanced approach is necessary, but because of liability issues, businesses must be allowed some leeway in looking at conviction records if there is a connection between the job and the criminal conduct, If not, they argue, the conviction record should not matter.
To read the paper, go here.