Arrested - No Chance of a Job?

[A Squared]

Think about it, just the fact that someone was arrested provides no useful informaiton whatsoever that is relevant to employment.

Well, no, this is certainly not true. If someone has say 15 arrests between the age of 18 and 23, for an absolute fact it *does* say something about that person, even if there are no convictions. We could debate exacty what it means, but it means something. Something's going on, and that might not be a person you want working for you. If nothing else it shows consistent poor judgment in selection of leisure time activities and companions.

Anyway, regarding the asking question, It could be that I don't have the big picture there. Can you show me the EEOC regulation which prohibits it, (i've poked aroung a little but can't come up with it) and can you also connect the dots for me on how the EEOC and it's regulations are incumbent upon a private employer, which does not participate in federal contracting, based where there are no state laws specifically prohibiting asking about arrests? What I mean is that if we were arguing about the applicability of say, minimum safe altitudes, I could connect the regulatory dots for you, showing how the line of authority is traced from the the Federal Aviation Act of 1958 through the applicabliity of Part 91 to the specific regulation.

I'm not able to do that with the EEOC regulations. I'm certainly willing to consider that I'm mistaken, but I'm a "show me" sort of guy, and I don't find a non-specific statement on an unofficial document from Lexis-Nexis to be particularly compelling.

I really don't get this....how on earth is it illegal to ask questions about an event that is public informtion?

Because in the United States you are innocent until proven guility.
It would be extremely unfair and discrimatory to make employment decsions based on arrests that do not result in convictions.

My understanding that the basis of whatever laws, regulations and guidelines exsist about this are not based in some high-minded, abstract deferral to the presumption of innocence, rather it is based on the possible use as a tool to discriminate racially. To put it bluntly, blacks, for whatever reason get arrested far more frequently than do whites of similar economic standing. We could argue about the reasons for this and what it means, but you can't say that it's not true. That's just a fact. Whatever official disfavor is given to asking about arrests records is based in the beleif that it can be used as a tool for racial discrimination. This isn't someting I'm pulling out of my a$$, it's from some reading I did on this exact subject a while back. I wish I could post a link to the document, but I can't find that. As I recall it was on the website of the the EEOC or the DOL or some such organization.

Yeah, we have a presumption of innocence, which is a good thing, but it doesn't take a lot of imagination that a history of frequent arrests, even if there are no convictions, does in fact tell you something valid about someone. A single arrest based on mistaken identity, probably doesn't mean much, repeated arrests for property crimes ... something's happening there. If nothing else it may reflect on thier judgement, and it certainly not illegal to discriminate on the basis of demonstrated judgement (or lack thereof). Discrimination is actually a good thing, employers discriminate on all sorts of criteria, level of education, level of certificate, experience, choice of clothing, personal grooming, etc. It's only very specific forms of discrimination which are forbidden; race is one, and prevention of racial discimination is behind whatever laws exist about asking about arrest records.

 

[JimNtexas]

A-squared, I refer you to the Lexis-nexis link I provided earlier. Perhaps you should google what Lexis-Nexis is. Or ask any HR professional.

You are correct in that this prohibition steams from equal opportunity laws (which cover a lot of factors beyond just race). That doesn't make it any less real.

Even asking about convictions in an interview is something of mine field for employers. Don't forget that ex-cons are a protected class.

If you participate in job interviews for your company I strongly suggest you ask your HR person to review your company policy on this issue before you start a fishing expedition in the interview. I'm holding in my hand the March 2007 issue of 'Fortune Small Business', which has a nice article on how to avoid hiring 'Employees from Hell'. It points out in a large font that in 2005 the EEOC fined employers $272,000,000 in 2005. That of course doesn't include the corresponding civil suit settlements. The possiblity of doing great damage to your company with improper interview questions is very real.

I wish it were possible to ask about arrests in an interview, because I interview people for my little (non-aviation) company and my lawyer won't let me ask that question.

If someone has a job application that in fact asks about arrests (as opposed to convictions) I'd sure like to see it. Maybe a company could get away with that if 100% of their applicants are white, male, under 40, non-veterans, non-immigrants, non-parents, non-felons, and in perfect health. But I doubt it.

We do run background checks via Lexis-Nexis, but we can only do that after we make an offer of employement. Our checks won't show an arrest that didn't result in some kind of conviction.

If you are a pilot who was asked in an interview about arrests that didn't lead to a conviction and were not offered a job, I strongly suggest you contact a labor lawyer. You stand to gain a considerable settlement.

If you are applying for a job and in fact have arrests you should spend a hundred bucks and review your record with a qualified attorney, preferably in the state where the interview will occur. Have him or her explain what information you must disclose if asked, and what information you need not disclose.

 

[flynryan15]

Expressjet and Mesa both ask about arrest in their application, they also ask about charges that were dismissed, sealed or expunged.

 

[Amish RakeFight]

Expressjet and Mesa both ask about arrest in their application, they also ask about charges that were dismissed, sealed or expunged.

Someone stated in an earlier post that it was somehow illegal for employers to do so. Is this from first hand knowledge?

 

[flynryan15]

Yes it is there is a question on the last page of the Express Jet app that ask you have you ever been arrested had anything expunged or sealed. As far as Mesa if you add their addendum to your airlineapps profile it ask that and more hang on I will look it up. They both follow it with a disclaimer that answering yes will not necessarlly prevent you from a job offer.

 

[flynryan15]

1. Have you ever been charged with any crime including any infraction, misdemeanor or felony under any Local, State, Federal laws or regulations or Military Tribunal of any jurisdiction? List all charges including those which were dismissed, suspended or deferred or otherwise resolved with or without a conviction. (Exclude minor traffic offenses).

That is exactly from the mesa page of airlineapps.com

 

[Amish RakeFight]

Isn't that question only applicable within the past 10 years?

 

[flynryan15]

Mesa it appears to be without time limit I can't recall on Express Jet. I know CommutAir just ask about convictions. Everyone else just ask about convictions. Some do ask about adjudication deferral

 

[A Squared]

1. Have you ever been charged with any crime including any infraction, misdemeanor or felony under any Local, State, Federal laws or regulations or Military Tribunal of any jurisdiction? List all charges including those which were dismissed, suspended or deferred or otherwise resolved with or without a conviction. (Exclude minor traffic offenses).

That is exactly from the mesa page of airlineapps.com

The Alaska Airlines application asks if you have ever been a defendant in court. Not if you have been convicted, if you have been a defendant, regardless of the outcome. Now that's not exactly the same as asking if you've been arrested, but it is a very similar question. an arrest does not prove a crime, not does being chearged or named a defendant prove a crime. In both situatiojns you are legally entitled to a presumption of innocence. It would seem that if asking about arrests was actually illeagl, so to would asking about charges.

 

[A Squared]

A-squared, I refer you to the Lexis-nexis link I provided earlier. Perhaps you should google what Lexis-Nexis is. Or ask any HR professional.

Uhhh, Jim. I'm quite aware of who and what LexisNexis is. The thing is, they are wrong. period. As are you...wrong. The EEOC for a fact does not forbid asking about arrests. When this thread popped up again, I did a little digging. One google search and you get a wealth of information which shows that you are in fact wrong about this. Direct from the EEOC:

http://www.eeoc.gov/policy/docs/qanda_race_color.html

# Arrest & Conviction Records - Using arrest or conviction records as an absolute bar to employment disproportionately excludes certain racial groups. Therefore, such records should not be used in this manner unless there is a business need for their use.

Whether there is a business need to exclude persons with conviction records from particular jobs depends on the nature of the job, the nature and seriousness of the offense, and the length of time since the conviction and/or incarceration.

Unlike a conviction, an arrest is not reliable evidence that an applicant has committed a crime. Thus, an exclusion based on an arrest record is only justified if it appears not only that the conduct is job-related and relatively recent but also that the applicant or employee actually engaged in the conduct for which (s)he was arrested.

Huh. golly gee, now why do you suppose that the EEOC would be giving you guidelines on when it is and is not appropriate to use arrest records in employment decisions if it was illegal to ask about those arrest records?


It just don't make sense, do it?


Here's an interesting page on the website of an organization which is involved in advocacy for persons with criminal records:

http://www.lac.org/toolkits/titlevii/title_vii.htm

Here's an interesting quote from that page:

In states lacking such regulation, employers can deny jobs to applicants solely because of their criminal record, even if the record consists only of arrests that did not lead to conviction or convictions that are old, minor, and/or unrelated to the job.

Don'cha think that if there really was a federal regulation that forbade asking about arrests, this organization would know about it (that's what they do) and they would be trumpeting it loudly? Don't you think if asking about arrests was really prohibited by federal law that they wouldn't admit that it is in fact permitted to not only ask, but to use that information in an employment decision? Hmmmmmm?


Here's a fascinating document from an company which provides human resources management services and advice. It's all about how to ask about arrests in a manner which is acceptable to the EEOC.

http://www.adpselect-info.com/client/pdf/freeBackgroundScreeningDownload.pdf.

In fact, the document is subtitied:

A white paper on how to use arrest, conviction and misdemeanor information in the selection process

Note that word in the middle that I've highlighted a little to make it easier for you to find. Kind of an odd sort of document to find a country in which it is illegal to ask about arrests, don't you think? You should read it, it's fascinating reading. Here's some highlights:

The Equal Employment Opportunity Commission (EEOC) stipulates that employers can use arrest information, convictions and misdemeanor offenses in the selection process, but they cannot be the only criteria used to make a hiring decision.

Well, hot D@mn, that doesn't sound quite like "the EEOC prohibits asking about arrest records" to me...does it sound like that to you? Just a few lines down the same paper says:

EEOC policy states, "An arrest record may be used as evidence of conduct upon which an employer makes an employment decision.

Hmmm, that sounds pretty reasonable to me, but it sure doesn’t sound anything like "the EEOC prohibits........" they also provide a reference for that EEOC policy (EEOC Policy Statement, N-915.061, II.B.2., September 7, 1990) Something that I would point out was conspicuously absent from your lexis nexis page, which is precisely why I said : "show me the source" , which is precisely what you were *not* able to do.

Again from the same document:

The EEOC also cautions employers when asking applicants to disclose arrest information on job applications that did not result in convictions because it may have a disparate, negative impact on the hiring of minorities. In addition, some states prohibit this practice altogether.

Hmmmm, "cautions" ...ain't quite the same as "prohibits" now is it. Mebbe that's where you're confused. Grab one of them dictionaries and look up "cautions" and "prohibits". You may notice that they don't mean the same thing.

Of course except for the first quote I gave you, most of these have been secondary sources (even though some specifically cite EEOC official statements) so I thought it would be nice if we went back to the source. Here's an EEOC page which is oriented toward hiring practices realted to disabilities and hiring.

http://www.eeoc.gov/policy/docs/preemp.html (note the EEOC.gov domain)

There's a question-answer section:

* May an employer ask applicants about their arrest or conviction
records?

Yes. Questions about an applicant's arrest or conviction records are not likely to elicit information about disability because there are many reasons unrelated to disability why someone may have an arrest/conviction record.

Now the answer is obviously given in the context of whether or not there are ADA implications of asking about arrests. However, it doesn't take a rocket scientist to see that if the EEOC really did prohibit asking about arrests, the answer would be something like this:

No, inquiring about arrests is not prohibited by the ADA, but the EEOC prohibits asking about arrests for other reasons.

It doesn't. Instead the answer (from the EEOC) is "yes, you may ask about arrests." Kinda hard to read that as "asking about arrests is forbidden by federal law", isn’t it?


Now, mind you, this is just from one Google search, only one, and this is not all of it, by any stretch of the imagination. I could go on, and on, and on with the references, for pages and pages, all telling you the same thing. I won’t, though. I’ll just give one more reference, and I’ve saved the best for last. This is a letter from the EEOC Office of Legal Counsel in response to an inquiry on the subject. It would be tough to find something more on point than this.
http://www.cir-nc.com/documents/titlevii_arrest_convictio.pdf.

Title VII does not forbid an employer from requiring applicants to provide information about arrest or conviction records.

I dunno, it really doesn’t get much clearer than that. The EEOC attorney then goes on to explain how to ask about arrests in a manner that avoids other legal problems.

When an employer asks employees or applicants about their arrest or conviction history, the EEOC suggests that it assures applicants and employees that honestly providing such history will not automatically disqualify them from consideration for the position.

Now that seems to beg the question, if the EEOC forbids asking about arrests, why are their attorneys telling people it’s legal, and explaining the proper way to ask about arrests?

Hmmmmmm?????

I wish it were possible to ask about arrests in an interview, because I interview people for my little (non-aviation) company and my lawyer won't let me ask that question.

Well, I thought that I had read on a previous thread that you are an attorney. (Although I suppose that actually there’s nothing here saying you aren’t) at any rate, attorney or not, it doesn’t take a rocket scientist to grasp that "my attorney recommends against...." is a vastly different thing than "......... is forbidden by federal law"

An example is references from previous employers. Many attorneys strongly recommend that a company never give a negative reference for a former employee, no matter how bad that employee was , even if the employee was fired. The reasoning, I guess, is that it’s just safer to not go there, because of the possibility of defending against a lawsuit which would get down to "he said, she said", and even if the company wins, it still loses money and resources. Whether this is a good or bad policy is a matter of opinion. It does not, however mean that it is illegal to gave an honest, but unfavorable evaluation of a former employee. Two totally different things.