Improper Use of Criminal Background Information in Making Hiring Decisions Can Land an Employer in Hot Water!

Arnstein & Lehr attorney Lori Adelson

Lori Adelson

Employers must be mindful of how they use criminal background information in making hiring decisions to avoid liability for failing to hire an applicant. Employers may not simply reject an applicant solely because they have an arrest record and/or “criminal” history. Rather, the employer must consider the impact of a conviction on the particular job.

Case in point – Pepsi Beverages (formerly Pepsi Bottling Co.) recently agreed to a pre-litigation settlement in the amount of $3.13 million dollars to resolve charges by the Equal Employment Opportunity Commission that it improperly considered arrest records in making hiring decisions. The EEOC claimed that as a result 300 otherwise-qualified African-American applicants were rejected because it appeared that Pepsi was flatly rejecting anyone with a criminal record instead of considering the conviction on the particular job. As part of the settlement, Pepsi is revising its employment policies, in addition to offering the 300 applicants positions with Pepsi.

The bottom line – MAKE SURE THE CRIME FITS THE JOB! Businesses should consult with their legal counsel and advisors to discuss a management training program that will best serve their needs to ensure they make appropriate employment decisions.

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