Firing based on a background check

June 20, 2008 2:02 PM

A friend works for a company who has recently performed a background check on all of its employees. It has instructed him to fire all employees who come back with a previous felony, even though in several cases, they knew about the charges when they hired the employees. This is happening in Indiana. Is this even legal? What rights does my friend have to oppose these firings, and what can these employees do about it?
posted by billybunny to law & government (19 comments total)

There is not enough information to give you an answer. There may be case law or a contract which affects this which you do not know about. He or the employees should contact their own attorneys.
posted by Ironmouth at 2:09 PM on June 20, 2008

Indiana is an at-will state, so I'm pretty sure it's legal.

There are plenty of reasons that this might be happening--the most obvious one that I can think of is insurance. They might be able to get a better rate or insurance policy if they can prove they don't have any felons working for them. They could save a TON of money this way.

Or perhaps they're in a business where it would be bad PR if it were revealed that they had felons working for them. For example, if it were a delivery company, they might not want it to get out that someone convicted for robbery is out there knocking on people's doors on behalf of the company.

This sucks for your friend, but he isn't really in charge of anything. He can refuse to fire them but that will probably end in his own termination. And then they'll fire these people anyway.

I am not a lawyer, but this seems pretty cut and dried to me.
posted by sondrialiac at 2:17 PM on June 20, 2008

The best thing he can do for those employees is point them to Indiana's unemployment benefits and tell them to file IMMEDIATELY.
posted by sondrialiac at 2:21 PM on June 20, 2008

It has instructed him to fire all employees who come back with a previous felony, even though in several cases, they knew about the charges when they hired the employees. This is happening in Indiana. Is this even legal?

Google tells me Indiana is has 'at will' employment, which broadly means you can fire anyone at any time, with a few exceptions. Exceptions include "men and women on the basis of sex; any group which shares a common race, religion, color, or national origin; people over 40; and people with physical or mental handicaps." Convicted felons, not so much.

IANALATINLA (I am not a lawyer and this is not legal advice) but it is probably legal. Of course, if the employees have written contracts, check the contracts.

What rights does my friend have to oppose these firings

Very few, I guess. He could refuse because he has an ethical problem with it; he could go to the company's ethics ombudsman; he could resign; he could explain to the company how important the employees are and how retaining the employees would be in the company's best interests; or he could organise the workers in unionisation.

He could tip off the employees so they can take out payment protection insurance on whatever loans they might have.

None of those options sounds very hot, but that's the way the employee-employer relationship works: The employee does whatever the employer says.
posted by Mike1024 at 2:30 PM on June 20, 2008

To reiterate again:

1. Talk to a lawyer.

2. Not enough information.

Adding in new stuff:

Just because its an "at will state", doesnt mean you can discriminate. California is an at-will state as well, and you wouldn't pull that kind of trash there.

Tell your friend to contact a lawyer to contact the fired people.

Good luck.
posted by hal_c_on at 2:30 PM on June 20, 2008

Just because its an "at will state", doesnt mean you can discriminate.

There's a big difference between firing all the women in a company and firing all of the felons.
posted by sondrialiac at 2:36 PM on June 20, 2008 [1 favorite]

This is going to be another boring thread, where everyone is going to tell you to talk to an attorney (preferably in all caps) and not to listen to any advice given by the smart people of metatalk.

That is because at least half of the question was "Is this legal?" and the other half was "What [presumably legal] rights does my friend have?"

The people best equipped to answer a question like that are attorneys licensed in the state of Indiana who have experience in employment law, not the (presumably) well-meaning laypeople on AskMe.

There may be a free or low-cost legal clinic in the area which can help your friend and / or the other employees, depending on their income level. This might be a good place to start looking.
posted by dersins at 2:37 PM on June 20, 2008

There's a big difference between firing all the women in a company and firing all of the felons.

I know this is a horrendously contentious and politically incorrect point -- but an attempt to fire all felons, statistically speaking, may drastically affect some demographics more than others... In that sense, it could be extrapolated to fit the definition of discrimination...

It's possible that you can't fire someone for something you knew about when you hired them if it has nothing to do with their job performance, even in an at-will state. Only a good employment lawyer would know for sure, though.. I think this is a pretty squishy issue with no cut and dry answer without true legal advice...
posted by twiggy at 2:44 PM on June 20, 2008

I know this is a horrendously contentious and politically incorrect point -- but an attempt to fire all felons, statistically speaking, may drastically affect some demographics more than others... In that sense, it could be extrapolated to fit the definition of discrimination...


Good point. Excellent point. Ignore my advice (except the unemployment part) and contact legal aid.
posted by sondrialiac at 2:48 PM on June 20, 2008

Thanks for all the helpful advice. Just so people know (and can stop repeating it!) everybody's being advised to speak with a lawyer. It's just hard to do so at 6pm on a Friday night.
posted by billybunny at 2:51 PM on June 20, 2008

I am not familiar with Indiana employment laws but this may help your research-

Wisconsin has a statute, 'Arrest and Conviction Records Under the Law', which declares that an employer cannot use a criminal record against an applicant / employee UNLESS the crime substantially relates to the job.

In other words, if I run a daycare center, I can refuse to hire (or can discharge) a convicted child molestor. At a bank, a past conviction for theft would relate.

But at a job where no minors are present, that child molestor's record could not be a factor.

There was a high-profile case in WI where a garbage company refused to hire an ex-con, a man who had raped and murdered a little girl. The man sued. The company lost.

One other issue that may apply- application 'fraud'. If the employee checked "No" on an application that asked if they have been convicted of a crime... and the employer discovers that this was a falsehood, the employee can be discharged. Not for being a convicted criminal, but for the fraud.
posted by GuffProof at 2:53 PM on June 20, 2008

twiggy - in the US employment discrimination only applies to certain Protected Classes felons are not one of them.

sure its discrimination - its just not protected
posted by bitdamaged at 2:55 PM on June 20, 2008

This is absolutely legal in an at-will state like Indiana. Felony convictions are not protected only age, sex, race, religion, and disability. Sorry.
posted by damn dirty ape at 3:46 PM on June 20, 2008

There was a high-profile case in WI where a garbage company refused to hire an ex-con, a man who had raped and murdered a little girl. The man sued. The company lost.

I call bullshit on this.
posted by jayder at 5:38 PM on June 20, 2008

For my money, the more interesting question is *which* lawyer to talk to. Assuming that this is a corporate entity, the company lawyer does not represent the uber-boss; (s)he represents the company and owes the company itself various duties.

Meaning that your friend should start with the company lawyer as opposed to hiring his own (legal aid will not likely give him the time of day).

That being said, company lawyers are often close with uber-bosses, so that course of action may need some serious thought first.
posted by norm at 5:40 PM on June 20, 2008

Jayder: put your shovel away. The case was Gerald Turner v. Waste Management.

If you also want to apologize, I'll accept.

I will also clarify that the company "settled"-- in case you want to argue that this doesn't consistute a "loss". I'm sure I know how Waste Management saw it when they wrote the check.

http://www.w-p.com/CM/Articles/Criminal-Conviction-Discrimination-Laws-Wisconsin.asp

Wisconsin’s law prohibiting discrimination against employees based upon a criminal conviction has been a subject in the press lately. Noteworthy are the cases wherein employers are faced with an ultimate nightmare decision regarding whether to extend employment to an individual with a heinous murder conviction or crime of that nature.

Two cases have received much attention. First, the recently settled lawsuit between "the Halloween Killer," Gerald Turner, and Waste Management of Madison. Mr. Turner was convicted in 1973 for raping and killing a minor girl.

Turner, who had been released from state prison on parole, was denied employment at Waste Management after he applied for a job sorting recyclables. Mr. Turner brought suit seeking, among other things, a declaration that he was entitled to be hired. The settlement came after the State Department of Workforce Development found that Turner may proceed to a hearing on his claim. The terms of the settlement are not public.
posted by GuffProof at 6:28 PM on June 20, 2008 [1 favorite]

For my money, the more interesting question is *which* lawyer to talk to. Assuming that this is a corporate entity, the company lawyer does not represent the uber-boss; (s)he represents the company and owes the company itself various duties.

While this is true in law school text books, pragmatically the average non-executive employees is almost always better served retaining their own counsel.
posted by Falconetti at 6:42 PM on June 20, 2008

Did they tell him how to do the background checks? Could he, say, run their names by the RCMP rather than the local police?
posted by QIbHom at 7:50 PM on June 20, 2008

GuffProof wrote: There was a high-profile case in WI where a garbage company refused to hire an ex-con, a man who had raped and murdered a little girl. The man sued. The company lost.

Jayder wrote: I call bullshit on this.

GuffProof then quoted the following as evidence that the company lost: The settlement came after the State Department of Workforce Development found that Turner may proceed to a hearing on his claim. The terms of the settlement are not public.

The company did not lose. It was determined that the man was only entitled to a hearing on his claim that the conviction should not bar him from consideration for the waste management job.

In lawsuits, the initial skirmishes usually concern whether the case will be allowed to go to trial --- first, whether the complaint states a cause of action on its face, and second, whether the plaintiff has been able to bring forward any evidence to support their claims sufficient to withstand a motion for summary judgment. If a case survives both a motion to dismiss and a motion for summary judgment, the defendant is looking at significant costs in defending the suit because the court has ruled that the case can go to trial. But a ruling that a case can go to trial is not a ruling on the merits of the claim. The merits will be decided by the finder of fact.

With this in mind, companies settle frivolous lawsuits every day, because defending the case all the way to trial would cost them far more than just paying the defendant to go away. No one with experience in law would say that is a "loss." That's exactly what happened in the Waste Management case ... once it was ruled that he was entitled to a hearing, the company paid the guy not to go through with the hearing. That's not a loss.

As I predicted, GoffProof, you couldn't back up your claim.
posted by jayder at 8:39 AM on June 21, 2008