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Can we exclude potential new hires with a criminal record?


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#1 DeeTeeQA

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Posted 21 October 2015 - 09:19 PM

I have a question to anyone out there, the plant manager here at our flexible plastics facility asked a question about background checks and food defense.  With a background check are we looking for something in particular that would be a red flag that there is the potential for security issues?  And what would those issues or red flags be?  I don't know if this was clear, the plant manager was curious because with GMP the auditors looked into the fact that we had a food defense plan and that we performed background checks on potential new hires.  Now going into IFS PACsecure he wondered if the background check was going to be looked at more closely and if there were any specifics that he should look for in the background check. 

 

We have a food defense plan in place and we state that we do the background checks on all potential new hires.  I guess the plant manager just wonders if a candidate should be excluded because of a criminal record, without any legal ramifications.  Any information that someone has would be greatly appreciated.

 

Thank you.

Nita



#2 MWidra

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Posted 21 October 2015 - 09:54 PM

I have a question to anyone out there, the plant manager here at our flexible plastics facility asked a question about background checks and food defense.  With a background check are we looking for something in particular that would be a red flag that there is the potential for security issues?  And what would those issues or red flags be?  I don't know if this was clear, the plant manager was curious because with GMP the auditors looked into the fact that we had a food defense plan and that we performed background checks on potential new hires.  Now going into IFS PACsecure he wondered if the background check was going to be looked at more closely and if there were any specifics that he should look for in the background check. 

 

We have a food defense plan in place and we state that we do the background checks on all potential new hires.  I guess the plant manager just wonders if a candidate should be excluded because of a criminal record, without any legal ramifications.  Any information that someone has would be greatly appreciated.

 

Thank you.

Nita

That is actually a good question.  I would consider a criminal record (convictions, NOT ARRESTS) that included acts of violence or deceit a disqualification for employment.

 

As long as you base your criteria on convictions, you can choose not to hire people who have a criminal record.  Criminals are not a protected class in the US.  You can't discriminate based on race, religion, gender, national origin, age, pregnancy, citizenship, disability as long as they can perform the job, veteran status, or genetic characteristics.  And in some states, sexual orientation.  But you can choose not to hire based on as little as a personal whim.

 

Martha

 

Martha


Edited by Simon, 22 October 2015 - 05:54 AM.
added AL to the end of PERSON

"...everything can be taken from a man but one thing:  the last of the human freedoms--to choose one's attitude in any given set of circumstances, to choose one's own way."  Viktor E. Frankl

 

"Life's like a movie, write your own ending."  The Muppets


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#3 Simon

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Posted 22 October 2015 - 06:01 AM

It is a good question and one I don't remember being previously asked (not too many of those these day's).

I've split the topic off to make it easier to find in the future.

 

Regards,

Simon


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#4 JohnWheat

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Posted 23 October 2015 - 11:15 AM

In the UK we have to follow Rehabilitation of Offenders Act 1974.
I should imagine there is a US equivalent?

1 part taken for potential employer

Once a caution or conviction has become spent under the 1974 Act, a person does not have to reveal it or admit its existence in most circumstances. Unless an exception applies (see below), then spent cautions and convictions need not be disclosed when filling in a form, or at a job interview. An employer cannot refuse to employ someone (or dismiss someone) because he or she has a spent caution or conviction unless an exception applies.

 

This underpins the basis of our law (innocent until proven guilty etc)



#5 ladytygrr

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Posted 23 October 2015 - 12:35 PM

Nita - great question! And one that is important to understand fully, for sure, especially taking food defense into account.

 

Martha - as always, thank you for sharing your wisdom. We've just promoted somebody to officially be HR Manager and she is working on understanding all of the different aspects of the background checks and hiring process. I will be sharing your post with her to give her some food for thought as she puts together our policies and procedures for that side of the business.

 

JohnWheat - I'm unaware of any sort of rule like the one you mentioned but if one does exist, I'd like to learn about it. 


Once in a while you get shown the light, in the darkest of places if you look at it right. -Grateful Dead

 


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#6 JohnWheat

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Posted 23 October 2015 - 01:01 PM

Also based on treating people fairly if you think about it. Can't treat someone like a convicted armed robber for something they perhaps done foolishly did in their teens and have stayed on the straight and narrow since.

There is an exclusion list where you still have to declare, such as working with children, law enforcement etc
Also, the formula for when a conviction is classed as discharged (and you no longer declare) is a rather complicated affair though.
USA is a strange beast when it comes to things like this. Willingly ban Kinder chocolate eggs to protect children's health but allow 'open carry' policy on Automatic weapons in some states!! However that's a whole other discussion ;)

Back on track it may differ state to state

This is an exert from your law surrounding this

Title VII

Title VII prohibits discrimination in every aspect of employment, including screening and hiring practices. The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, issued guidance in 2012 on employer use of criminal records in hiring. The EEOC has long warned that an employer’s blanket policy of refusing to hire anyone with a criminal record could be discriminatory, given the much higher arrest rates of African Americans and Latinos.

In its policy guidance, the EEOC made clear that disqualifying applicants based on criminal records could lead to two types of discrimination claims:
•If the employer treated applicants of different races or nationalities differently in the hiring process, that could lead to a “disparate treatment” claim. For example, an employer that runs criminal background checks only on non-White applicants, excuses minor offenses by White applicants while excluding Latino applicants for the same types of records, or assumes that an African American with a youthful drug offense poses a safety risk while a White applicant with a similar offense did not, that employer is treating applicants differently based on their race or national origin.
•If the employer applies a uniform policy that has a disproportionately negative effect on applicants of certain races, that could lead to a “disparate impact” claim.

Because employers could have perfectly sound reasons for wanting to exclude applicants with certain types of offenses, the EEOC has provided a three-part test employers can use to make sure that their criminal record exclusion policy screens out only those who pose an unacceptable risk. The EEOC instructs employers to consider:
•the nature and gravity of the criminal offense or conduct
•how much time has passed since the offense or sentence, and
•the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).



#7 Plastic Ducky

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Posted 23 October 2015 - 06:51 PM

Great info on this topic. I'm not sure about other countries, but reading this topic specifically JohnWheat's contribution and living in the US brings one term to mind....

 

Prison-Industrial Complex

 

A network of actors motivated by profit alone masquerading around under the guise of social justice / morality

 

..."then they came for the trade unionists, and I did not speak out

       because I am not a trade unionist."



#8 Charles.C

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Posted 25 October 2015 - 03:50 AM

Hi JohnWheat,

 

Thks for yr post 6. The exact legal situation looks, as usual, to be quite complex -

 

http://www.eeoc.gov/..._conviction.cfm

 

http://www.eeoc.gov/...ion_records.cfm

 

Attached File  brochure-arrest-conviction-best-practices.pdf   2.56MB   17 downloads


Kind Regards,

 

Charles.C


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#9 MWidra

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Posted 26 October 2015 - 05:13 PM

In the UK we have to follow Rehabilitation of Offenders Act 1974.
I should imagine there is a US equivalent?

1 part taken for potential employer

Once a caution or conviction has become spent under the 1974 Act, a person does not have to reveal it or admit its existence in most circumstances. Unless an exception applies (see below), then spent cautions and convictions need not be disclosed when filling in a form, or at a job interview. An employer cannot refuse to employ someone (or dismiss someone) because he or she has a spent caution or conviction unless an exception applies.

This underpins the basis of our law (innocent until proven guilty etc)

JohnWheat, it is my understanding that there is nothing similar to your 1974 Act. Once you are a convicted criminal here, your record follows you around forever unless you receive a pardon or your conviction is overturned. And even then, your record is not automatically cleaned up, you must file for an expungement of your record.

in some states, people who are convicted of serious felonies lose the right to vote.

Employers have the freedom to hire whomever they choose, except for what we call "protected classes." I listed those in my original answer. You cannot discriminate based on those classes, but you can refuse to hire anyone for any other reason, including a criminal conviction.

Innocent until proven guilty only applies to what happens in a court of law, in a specific case. If someone has been convicted previously for a crime that involves dishonesty, it can be used to discredit someone's truthfulness as they testify.

So, here, what you do has consequences for the rest of your life. I wish that was more obvious to young people.

Martha

"...everything can be taken from a man but one thing:  the last of the human freedoms--to choose one's attitude in any given set of circumstances, to choose one's own way."  Viktor E. Frankl

 

"Life's like a movie, write your own ending."  The Muppets


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