Attorney Leeson Quoted as Employer Advocate in SHRM “Ban the Box” Article
Gentry Locke employment law partner Todd Leeson was quoted in an article published by the Society for Human Resource Management (SHRM) discussing the “ban the box” movement.
The article, titled “Ban-the-Box Movement Goes Viral”, updates SHRM members across the country on cities and states that have passed laws to ban the check box on employment applications asking whether the candidate has ever been convicted of a crime.
Under the section subtitled Impact on Employers, author Roy Maurer notes Leeson’s observations on the risks and dangers of employers unknowingly hiring persons who could pose a real threat to their business, employees, and customers:
Depending on the facts, an employer in Virginia can be liable for failing to conduct a reasonable investigation of an applicant it hires who then harms another person during employment, noted Todd Leeson, a partner with Gentry Locke in Roanoke, Va., and legislative director for the Virginia Society for Human Resource Management State Council.
“Consider these allegations from a 2012 Virginia case,” Leeson said. “The employer hired a person to work in a hotel, and allegedly did not perform a background check or ask about the person’s criminal history. The person had previously been convicted of a felony sex crime. The person thereafter raped an 18-year-old hotel maid on her third day on the job. The maid sued the hotel for negligent hire. The case settled with the hotel agreeing to pay $675,000 to the former maid.” Ultimately, Leeson said, “I believe it is reasonable and prudent for employers to ask about prior convictions as one factor in the overall evaluation of the applicant.”
In a previous article on this topic, Leeson offered the following advice:
[T]he EEOC will initiate litigation against an employer who refuses to hire a person in a protected class (e.g., an African-American) solely because he has checked the box. Accordingly, for decades enlightened employers have included language in their applications immediately after the criminal conviction question along these lines:
If yes, please state the facts including the location, the offense, and the date of the conviction. A conviction does not mean that you will not be hired. Please provide all the facts so that we can evaluate them as to the position for which you have applied.
With this safeguard in place, the employer can then make an “individualized assessment” as to the relevance of the prior conviction(s). Of course, the employer will also be evaluating other facts as to the applicant’s qualifications such as the applicant’s employment history, educational background and any necessary skills.
For more information on hiring practices and employment policies for your company, contact Todd Leeson at 540.983.9437.
