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The “In Case You Missed It” CLE Recap: Applicants and Criminal Records/Background Checks

 

By Julia Kleinschmidt, Bose McKinney & Evans LLP

The Paralegal Committee organized a successful seminar on the subject of Applicants and Criminal Records/Background Checks at the Indianapolis Bar Association on August 8, 2013. Janeen Feinberg, Frost Brown & Todd, LLC, was a well-informed and dynamic speaker. Ms. Feinberg’s practice area includes Labor and Employment Law, as well as Complex Business Litigation. She brought further expertise to the subject matter through her background with the Maryland State Attorney’s Office in Rockville, Maryland Circuit Court where she assisted in prosecuting cold cases. Her familiarity with the criminal justice system and employment and labor law brought to life the subject of how to properly advise your business clients on avoiding common pitfalls in designing an employment application, and interviewing applicants.

Ms. Feinberg highlighted various difficult areas that occur in applicant hiring practices, including the importance of distinguishing between arrests and convictions, potential for employer liability if an employer’s screening process disproportionately screens out protected groups, and how to properly develop a “targeted screen” with opportunity for “individualized assessment” in your application process. For example, a targeted screen is an appropriate screen to identify individuals that may have a criminal conviction that would absolutely bar their employment (a prior child molestation conviction for an applicant to a daycare center), while then allowing for an individual assessment of the screening result to ensure the screen is not overly broad and does not inappropriately penalize the person if there is an explanation for any conviction.

Also outlined were best employer practices for arrest and conviction screens. While necessary to screen, particularly with certain types of employment related to certain specific crimes, such as theft crimes if a person is responsible for cash items or other fiduciary responsibilities, it is important to know the law and have appropriate application questions, and knowledgeable interviewing personnel to help avoid employer exposure to discrimination cases. Suggestions include eliminating policies that strictly exclude employees and applicants based on criminal record alone, knowing when it is appropriate and legal to inquire further into an employee’s criminal records, and adequate training of all employees who interview applicants.

The seminar was informative and provided thoughtful information for general knowledge, as well as specific to those who practice Labor and Employment Law. The seminar was well-received by those in attendance and we look forward to having Ms. Feinberg return to speak on additional subjects in the area of Labor and Employment Law.

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