[author: Aaron Kase]
Recently hired Huffington Post Senior Vice President of Sales Moritz Loew was let go after only three months on the job, thanks to a background check that turned up a 9-year-old DWI arrest. Loew had an outstanding warrant in Seattle from 2003 for failure to appear in court for the charges.
“My biggest regret is having even touched a set of car keys after drinking beer,” Loew wrote in an email message to friends and colleagues. “If this is the worst thing that happens to me due that mistake, I will consider myself extremely fortunate…I have since cleared everything up with my friends at the King County Court House and hoping to move on in a positive fashion.”
After his dismissal, HuffPo owner AOL said only that Loew did not meet their hiring standards.
It may seem strange that the results of the background check came about months after Loew was hired. Why waste time and resources bringing an employee on board if he hasn’t been fully vetted yet? In fact, the practice of delayed background checks isn’t all that unusual, according to Joshua A. Hawks-Ladds, a labor and employment attorney in Connecticut.
“There’s a whole host of reasons why these things happen,” Hawks-Ladds explains. “Some employers don’t bother to wait for the background check to come back before making a hire. Some don’t bother to do a background check until the hire already takes place. Some don’t check them, some don’t follow up…Sometimes they get suspicious after the hire.”
Protections for Employers and Employees
Joshua A. Hawks-Ladds
Although it’s unclear exactly why a decade-old DWI made Loew unfit for his Huffington Post job, in general background checks are extremely important so employers can protect themselves from hiring unsuitable or untrustworthy candidates for positions of responsibility. “They’re especially important in positions of trust, in financial jobs, or working with children or persons of various sensitivities,” says Hawks-Ladds.
However, both state and federal laws protect job seekers from being unfairly discriminated against based on the results of background checks. “It’s very important that local laws be analyzed to be sure that the individual you’re analyzing doesn’t have certain protections,” the attorney says.
Laws vary by state, but an increasingly popular measure is to “ban the box” on applications asking if applicants have a criminal record, forbidding employers from automatically dismissing candidates with arrests or convictions. Instead, background checks are delayed until an applicant passes a first round of screening, creating a greater chance that the employer considers the the whole of what the potential hire could bring to the job, instead of summarily rejecting him or her based on past brushes with the law.
Some states also have statutes declaring that arrests and convictions that have been erased from the record do not have to be disclosed.
Notably, the federal Equal Employment Opportunity Commission issued new guidelines earlier this year dictating that a criminal record cannot be the sole basis of rejecting someone from a job, unless there is a compelling business reason to do so. The decision was based on a report that found African-American and Latino applicants faced a disparate impact from policies excluding applicants with records.
“The EEOC suggests that employers limit inquires to records for which exclusion from the job would be specifically related to the job in question and consistent with business necessity,” Hawks-Ladds says. “If you’re hiring someone for a financial job or one with contact with individuals with sensitivities, obviously you’ve got a justifiable reason to do [a background check]. If you’re just hiring a secretary who’s not going to have a position of trust, there could be an argument that you don’t have a right to do it under EEOC guidance.”
Learn more about labor and employment law on Lawyers.com or search for an employment law attorney.
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