The National Law Journal reports that Vick's return has generated "a lot of buzz in the employment law arena." Employment lawyers (including me, right now) are using the high-profile case as a reminder to employers to be cautious in both how they obtain criminal records and how they use that information.
In the NLJ article, Attorney H. Andrew Matzkin advises that employers can find out about prospective employee's criminal records using media reports or social media web sites like Facebook (to which I'll add LinkedIn, Twitter, and FriendFeed). If the information is not publicly accessible online then employers may proceed under the
"Fair Credit Reporting Act, which sets national standards for employment screening and allows companies to hire outside agencies to conduct credit checks and obtain criminal conviction records on current and prospective employees."Employers must worry about more than just obtaining the information though, they must also be careful to use the information lawfully.
Two conflicting interests dominate the policy discussion regarding hiring individuals who have been convicted of crimes. First, employers may wish to keep criminals away from their business. Do you want someone convicted of robbing a convenience store running your convenience store cash register? There is also an interest in rehabilitating criminals and giving them a second chance, another opportunity to become productive members of society.
Some states have laws prohibiting how employers may use arrest records. As a Pennsylvania attorney I happen to know that Pennsylvania has a statute governing this very issue:
"(b) Use of information.--Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied."18 Pa. C.S. § 9125. There is also a provision requiring employers to notify employees when a hiring decision is based on criminal history.
The Pennsylvania statute strikes a happy medium. It allows employers to choose for themselves if they want to grant second chances BUT the criminal history may only be considered to the extent it actually relates to the position for which the individual applied.
When it comes to acquiring and utilizing criminal records, as with seemingly everything in employment law, be careful to adhere to the federal and state (and local) laws. It's a mine field out there!