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Bad Apples or Bruised Apples?: Screening Caregiver Applicants’

Criminal Records

Bad Apples or Bruised Apples?: Screening Caregiver Applicants’

Criminal Records

Greg L. Gambill Modrall, Sperling, Roehl, Harris & Sisk, P.A.

New Mexico is a leader in screening applicants for caregiver jobs

• In 2003, Congress set up a pilot program for background checks

• New Mexico was one of the pilot states, but it already had a statute for background checks

Under the CCHSA,

no caregiver may be employed by a care provider unless the caregiver first has submitted to a request for a nationwide criminal history screening.

Employer access to information is limited

• NMDOH shall give notice of a disqualifying conviction to a care provider and applicant

• No other results shall be provided to care

provider

What happens to disqualified applicants?

• Petition for reconsideration

• At the discretion of the care provider, may be employed while the petition is pending

The list of disqualifying convictions is short—what about other

information that an employer might want to consider prior to

hiring an applicant?

• Care providers must document that they have checked New Mexico’s abuse registry.

• Don’t forget that federal law also contains a list of convictions that disqualify applicants.

Now we’ve covered a care provider’s main duties to screen under state and federal law—but what if the care provider wants to

go further?

It requires an understanding of Title VII protections for

applicants.

Scenario 1

Employer has a blanket policy of refusing to consider hiring anyone convicted of any crime other than a minor traffic offense.

Is this permissible?

Probably not.

A blanket policy will usually suffer from two problems: (1) lack of legitimate business need or job relatedness; and (2) the potential for a discriminatory impact on minorities.

Scenario 2

Employer refuses to hire applicant who failed to disclose a petty larceny conviction.

Is this permissible?

Yes, but...

...it is the applicant’s falsification, or negligent failure to disclose that justifies the refusal to hire.

Scenario 3

Applicant is offered a job, but discloses on employer’s questionnaire that she has been arrested 14 times. She has never been convicted of a crime. Applicant is a minority. Employer withdraws the offer.

Is the withdrawal proper?

No...

...if the neutral question of arrest records works to exclude a greater proportion of minorities than non-minorities.

Plus, courts have frequently disapproved of the arrest inquiry in view of proven adverse racial impact and marginal job relatedness.

Scenario 4

Employer wants to give consideration to recent convictions in evaluating an applicant’s fitness for a position, regardless of whether the conviction is job-related.

Is this permissible?

Yes, so long as...

...it is but one of multiple factors in the inquiry, and not an absolute bar to employment.

Scenario 5

Can the employer seek to determine whether an applicant has committed a job-related felony or misdemeanor for which he or she was never arrested or convicted?

Yes.

Similarly, while the fact of an arrest may be off limits, the underlying circumstances that led to it are not.

What about the job application itself?

The following explanation was approved for use in a job application by a court:

NOTE: A conviction does not automatically mean that you will not be selected. The job for which you are applying, what you were convicted of, and how long ago you were convicted, are important. Please give all the facts so that an informed decision can be made.

What about drug use?

Title VII was amended in 1991 to cut off adverse impact claims.

One last point

Before rejecting the applicant, the care provider should have a legitimate, non-discriminatory reason for rejection and be satisfied that, if asked, it can explain the reason for rejection.

Obamacare

• Patient Protection and Affordable Care Act– Expands the caregiver criminal screening program

nationwide

Key Provisions• Requires the care provider to search the

following:– abuse and neglect registries of other states

(maybe)– records of any proceedings in New Mexico that

may contain disqualifying information

• “Rap back” capability

Questions?