If job candidate has a criminal record, ask questions

A column about keeping your practice in good health

By Victoria Stagg Elliottis a longtime staff member. She covered practice management issues and wrote the "Practice Management" column from 2009 to 2013. She also covered public health and science from 2000 to 2009. Posted Aug. 10, 2009.

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If you run a background check on a potential receptionist, and you learn he was convicted of marijuana possession many years ago, can you still hire him?

Or what about offering a job to an otherwise strong candidate who, in answer to the application question, "Have you ever been convicted of a crime?" writes, "Yes, drunken driving, six years ago."

Can you employ them? Should you? What are the risks if you do? What are the risks if you don't?

Considering hiring someone with a criminal background, no matter how minor, is tricky. On the one hand, anti-discrimination laws prevent you from instituting a ban on hiring anyone with a criminal record. On the other, you could open yourself up to a negligent hiring lawsuit if it is determined that you should have known someone was at increased risk of causing harm to patients or staff.

This question is becoming more important, because background checks are easier than ever, meaning that job applicants are more likely to have this type of information disclosed during the hiring process even if the conviction is far in the past.

Also, the percentage of people of the labor pool who answer "yes" to an application question about past convictions is growing. According to the U.S. Dept. of Justice's Bureau of Justice Statistics, in 2007 more than 7.3 million people, or 3.2% of adults, were on probation, in jail or in prison. The agency estimates that if trends continue, approximately one in every 15 people will serve time at some point in their lives.

"A physician has to be so careful," said Linda Stimmel, a founding partner in the Dallas-based law firm Stewart Stimmel. "But I would not have any kind of policy on the subject. I would handle every hire on a case-by-case basis."

So what should you do? Experts recommend asking these questions:

What was the offense? This is key, because a direct link between the crime and the work environment are strong grounds for not hiring someone. That's because an employer could be held liable for negligent hiring. Employing someone with a child molestation conviction in a pediatrician's office would be a clear example.

Most situations are not quite so clear-cut, but other questions may clarify the decision.

What were the circumstances? Experts say context is important. For instance, David M. Glaser, an attorney with Minneapolis-based Fredrikson & Byron's health law group, once counseled a health system about hiring a physician convicted of obstruction of justice.

The doctor made the mistake of discussing details of an investigation with other health professionals before being interviewed by government agents, an action that led to the criminal charge. "They were very reluctant to hire him," he said.

After extensive discussions about the details of the incident and assessing the likelihood of it happening again, the institution did employ the physician, who also acknowledged that he made a mistake.

How long ago did it happen? Experts advocate considering how long applicants have been able to stay clean, along with any efforts, such as acquiring additional education, to improve themselves.

How much risk is there of this past offense affecting my office? Those who counsel physician practices on this subject advise thinking about how the conviction may affect the running of the practice. Issues with bonding employees may be addressed by the U.S. Dept. of Labor's program that insures employers against losses caused by the dishonest actions of employees who cannot be covered by usual insurance because of their convictions. This is provided at no charge for six months and is administered by state agencies.

But the conviction also may interfere with working with Medicaid, Medicare and private insurers, depending on the job and the nature of the conviction.

Experts also advised ensuring that, if the hire is subject to professional licensing, the conviction does not interfere with that licensing.

What can -- and should -- I ask of this applicant about the offense? Physicians and others involved in hiring should get as many details as possible about the offense and not hesitate to ask for them. In an attempt to make this easier, some job-hunters with criminal convictions may attach personal statements explaining the situation.

But an individual who is not forthcoming about a conviction that later turns up in a background check should either not be hired or be terminated, experts said.

If I hire this person, must I tell my patients and staff I hired someone with a criminal background? Do I need to protect myself from a lawsuit? Some lawyers advise being upfront with staff and patients about a recent hire's criminal conviction. That should protect against charges that people did not know they were working with or being cared for by someone with a record. Patients do have the right to ask not to be seen by that person.

If the offense was drug-related, the physician also can consider implementing some form of drug testing, although such a program would have to apply to the entire staff and not just the person with the past conviction.

"If you are able to document all the safeguards you took to protect your patients and your employees, then I think it is OK," Stimmel said.

If I don't hire this person, how do I protect myself from an anti-discrimination claim? Experts advise against having a policy of not hiring anyone with a criminal record. Several states specifically include this category as a protected class under anti-discrimination regulations. In those states that do not, such a policy could unduly affect certain racial groups that have higher rates of incarceration, which also could create trouble with equal-opportunity regulations, experts said.

Refusing to employ an individual with a past conviction should not be problematic unless it turns out to be part of a pattern of discrimination.

Victoria Stagg Elliott is a longtime staff member. She covered practice management issues and wrote the "Practice Management" column from 2009 to 2013. She also covered public health and science from 2000 to 2009.

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