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A former felon has applied to your practice. Now what?
Avoid violating anti-discrimination laws the same way you avoid malpractice claims.
igorstevanovic/Shutterstock.comAbout 30 years ago, shortly after I acquired my first veterinary clinic, my office manager and I were looking to fill a kennel staff position and did what employers did back then: We pulled out a pad of stationery store job application forms and put an ad in the newspaper classifieds.
We were impressed during the interviewing period by a young man who spoke well and dressed neatly. However, his application concerned us-he'd checked the box next to the question, “Have you ever been convicted of a crime other than a minor traffic violation?” When asked, the gentleman was honest and said he'd served time for a drug-related offense about eight years earlier.
Despite our reservations, we hired that applicant and everything went fine for about six months. Then cash started coming up short every morning in the safe. The police were unable to help us, so I hired a private investigator who installed secret cameras late at night. Within three days, we had video of that kennel hire using a coat hanger to extract deposit bags from the safe.
For years after that, I wondered how I could have been so naïve. At the time, giving him a second chance seemed like the right thing to do. If I were put in this position today, things would be entirely different-and I don't mean I would be less naïve or sympathetic toward that job applicant. I can't say if I would or I wouldn't.
The difference hinges not on me or my experience but on the fact that the New York Human Rights Law prohibits the use of crime conviction check boxes on job applications. And in New York, as in a number of other states, it is now discriminatory to fail to interview or hire a job applicant solely because he or she has a previous criminal conviction.
The developing and increasingly inclusive anti-discrimination laws throughout the United States are in large part designed to encourage the hiring of individuals with criminal records in order to keep them from becoming dependent on society or from returning to illegal activities as a means of support.
These objectives are pursued through the enactment of two types of laws, which exist at both state and city levels (New York City's Human Rights Law is even stricter than the state of New York's, for example).
First, many states have passed a category of legislation often referred to as “ban-the-box” laws, which prohibit the use of application forms that inquire about the criminal past of a job applicant. In other words, the process of choosing whom to interview must be done without any prior inquiry into an applicant's criminal background.
An applicant's criminal history can be brought up later-sometimes during the interview and sometimes after a background check-but the decision to interview cannot be influenced by previous criminality. A simple Google search can tell you if your state is a “ban-the-box” state. It can also give you a heads-up if such laws are in the process of moving through your state or city legislature.
Second, more and more states also require businesses to demonstrate that applicants aren't being denied job offers on the basis of their criminal histories. Employers must be able to demonstrate that an applicant hasn't been summarily passed over for having a former felony, but that doesn't mean they must be summarily hired either.
So what's a hiring veterinarian or practice manager to do?
You can avoid civil or criminal liability for potentially violating such laws the same way you avoid malpractice claims: copious documentation. Record as much as possible during the interview. Make thorough notes of your questions and the applicant's answers. It's also a good idea to always have a second interviewer present who can testify to the fact that the interview was carried out with due consideration of anti-discrimination laws-and not just those that apply to felons.
You can also avoid violating anti-discrimination laws by considering each item on the following list, which was provided by the state of New York but has broad applications. Doing so can help you logically think through your decision and demonstrate nondiscriminatory behavior toward former felons in the event that your hiring practices are called into question.
- The interest of the state in moving forward its public policy
- The age of the job applicant at the time of her criminal conviction
- The seriousness of the crime
- The amount of time that has passed since commission of the crime
- Any information provided by the applicant indicating that he has been rehabilitated
- The nature of the specific job duties
- The bearing that the nature of the crime has on the position being sought
- The employer's legitimate interest in maintaining a safe workplace
Empire State learnings
A recent case law in New York has established that even if the state agrees that the decision to not hire a former felon was not improper, an employer can be guilty of violating its human rights law if they cannot prove they made the decision after giving due consideration to each of the eight guidelines above.
The takeaway? Be as careful and scrupulous in your hiring documentation as you are in your medical record keeping.
Christopher J. Allen, DVM, JD, is president of the Associates in Veterinary Law PC, which provides legal and consulting services exclusively to veterinarians. He can be reached via e-mail at email@example.com.