Pre-hire due diligence Generally, employers should take steps to avoid being surprised by revelations such as the one the grocery store manager had at his desk that Monday morning. If an arbitrator subsequently awards reinstatement, the employer can later demonstrate that it only kept the employee on the payroll because an arbitrator so ordered. In May , President Clinton signed an amendment to the Jacob Wetterling Crimes Against Children Act that required each state in the country to notify the public about sexual offenders who reside in their area. The employer should explain that the company is reviewing the matter, and that the employee will have an opportunity to provide information. Some will anonymously disclose listings to their superiors, as someone did to the grocer manager at the beginning of this article. According to the printout, the employee had a six-year-old conviction for indecent assault.
This was no joke. According to the printout, the employee had a six-year-old conviction for indecent assault. Thus, someone surfing the Internet at home can punch in some geographic restrictions, then see who in their community is listed. Many Web surfers are keenly aware of the information available from these databases, and when they discover that one of their co-workers is a registered sex offender, they take action. With respect to the grocery manager example: In California, site visitors can search for sex offenders by city, ZIP code, county or within a predetermined radius of a selected address, park or school. At a minimum, the investigation should include the independent review of court records related to the conviction in question. That is what all employers must do in such a circumstance. Application of these state laws is more readily apparent in some circumstances than in others. Does the state frown upon consideration of temporally remote convictions, even if they involved serious crimes? The employer is aware that the employee is a registered sex offender. First, the employer must work with legal counsel to determine what legal obligations or limitations exist. Employers also must train managers so that they can effectively interview job candidates to elicit information about prior convictions. Finally, at the interview, employers can have an applicant authorize in writing a review of his or her criminal history. The employer also must question the employee about the conviction. The registry maintained by the Pennsylvania State Police allows the public to search by name, ZIP code, town or county. Many cases, however, will be closer calls, and the employer will need to err on the side of caution, and then be prepared to defend its decision. Negligent hiring refers to the hiring of individuals who the employer knew, or should have known, were unfit for hiring. Is a man with a past indecent assault conviction unsuitable for employment with a landscaping company where all of his co-workers also are adult males? Some states have criminal record repositories from which information can be purchased. The manager immediately recognized the man in the mug shot. Others take a bolder approach and demand that employers take immediate action. Negligent retention refers to existing employees who the employer learns are unfit for continued employment. Armed with that preliminary information, the employer should assess the capacity in which the employee works, paying particular attention to such factors as the amount and type of exposure the employee has to co-workers, as well as the amount of customer contact. Does the state in which the employer resides recognize claims of negligent retention?
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