Blanket policy against hiring felons is forbidden

Employers may exclude felons based on job needs



The Equal Employment Opportunity Commission contends employers cannot have a blanket policy stating they will not hire convicted felons, according to Augusta attorney Edward Enoch.

That approach is based on the belief that blacks and Hispanics are disproportionately charged and convicted of crimes. So, even if an employer has no personal prejudice against blacks or Hispanics, the blanket policy has the same effect. A white convicted felon could also make a claim because it's the policy, not the person, who is affected.

In Richmond County over the past 10 years, the ratio of those indicted for felony crimes is nearly 3-to-1 black-to-white among defendants.

However, Enoch said, there are perfectly legitimate reasons for an employer to deny a convicted felon a particular position.

An employer is within his rights to deny a job that requires interaction with the public for someone convicted of a violent crime, for example. Otherwise, he said, the employer could be liable if the person becomes violent again with customers or co-workers. If the job calls for working alone in an empty warehouse, the same argument can't be made, he said.

Enoch stressed, however, that this is EEOC policy, not law. It doesn't become law unless Congress says it is (and the president agrees) or the U.S. Supreme Court rules the EEOC interpretation is correct.

Augusta Attorney Mike Brown agreed, but said he thinks a convicted felon would have a hard time convincing a judge or jury he was discriminated against.

"There are trust issues in almost every job," and an employer might find a convicted felon a person to distrust, he said.

The employer has to look at the job and relate how a conviction is relevant. If the job requires driving a dump truck, then the employer is within his rights to deny the job to anyone with a history of driving offenses or DUI.

Brown wondered, what if you have a person who had a drug problem, who did his time and then went through rehab and has turned his life around? Why should he be disqualified?

An employer would be within his rights -- and protect the business from possible liability -- to require random drug tests. Hiring a convicted sex offender for a job that requires interaction with public and co-workers, on the other hand, could be dangerous if there's another offense.

"Guess who is going to get sued?" Brown said. "The truth is, the courts give employers a wide latitude (in making hiring decisions) and they should. An employer just cannot have a blanket policy that excludes any convicted felony."

the fight for information

City officials clamped down on access to public information about employees after The Augusta Chronicle wrote stories that cast government operations in an unfavorable light.

Information about city employees for this article came from the Augusta Judicial Circuit District Attorney's office and the city of Augusta Human Resources Department.

Open Records requests to the district attorney's office were complied with in less than three days -- even when they pulled 31 files, most from retention -- and at no charge.

The city was not so prompt, and insisted on collecting fees in the middle of the process.

On Aug. 31, the newspaper sent a request to the city's Human Resources Director Rod Powell to inspect 18 employee files. Reporters reviewed the files in the presence of a city employee who redacted Social Security numbers and other private information, also at no charge.

Some of the information was used to write an article that showed a firefighter was given special training and a second chance after failing to meet the fire department's physical requirements, and another story that found a recreation department employee had been paid to excuse a community service worker from her duties.

On Sept. 20, the newspaper filed a second request to review 31 employee files. The next day, city staff attorney Kenneth Bray e-mailed a letter saying it would take eight days for two employees to complete the task and that the charge would be $372 for their time and copying fees.

On Sept. 22, the newspaper pared its request to nine names. Bray responded that the city needed five additional days, and that the cost would be $97.35. The newspaper paid the bill and received the records Sept. 30.

No city policy

Augusta lacks a policy on hiring workers with criminal backgrounds, according to Victoria Biascoechea, the city employment manager:

"While Augusta does not have a written policy that speaks to employment of individuals with criminal backgrounds, we do take in account the position they are applying for, the nature of the crime and the length of time since conviction. If the crime does not relate to their job requirements, and a considerable time frame has passed, they can be employed. We do advise against certain hires, however we do not make the final determination. The director can choose to hire against the advice of Human Resources. With that said, certain convictions can prevent individuals from employment in some departments, e.g. a theft conviction will prevent someone from handling cash (they cannot be bonded), public safety also have different requirements that are set forth in their certifications."