In Washington, for example, licensing rules put limits on felony convictions for certain “real parties in interest.” Again, the prudent employer will seek advice on any unique prohibitions that might apply to the job in question. There is one “easy” situation where other applicable laws prohibit individuals who have been convicted of certain crimes from working in the cannabis industry. For example, can a company demonstrate an increased likelihood that applicants with a theft conviction are more likely to steal than applicants without one? The bottom line is that this decision should be an individualized analysis and the employer must be able to give reasons for it beyond not wanting to hire felons. It is even better if they can defend their decision with research, evidence or statistics. Employers also need to be able to articulate how the conviction is related to job performance and consistent with business necessity. The employer should consider the applicant’s age at the time of conviction evidence that the individual performed the same type of work, post-conviction, with no incidents of criminal conduct the length and consistency of employment history before and after the offense rehabilitation efforts, such as education and training employment and other information regarding their fitness for the particular position. A policy denying employment to all applicants with criminal conviction records violates Title VII.Īfter an employer lawfully learns of an applicant’s criminal conviction, that company must consider: (a) the nature and gravity of the offense (b) the time that passed since the offense or conduct and/or completion of the sentence (c) and the nature of the job.
– No blanket “any conviction” prohibition standard. Using arrest records has a disparate impact on African-Americans and Hispanics and thus violates anti-discrimination laws. Many states, including Washington, agree. Hence, the EEOC frowns on any blanket prohibition of candidates with arrest records, and allows convictions to be considered under only specific circumstances. The EEOC assumes that arrest, and even conviction statistics, demonstrate a disproportionate, or “disparate,” impact on people of color.
A disparate impact can exist when an employer’s apparently neutral policy has the effect of disproportionately screening out a protected class. People with criminal records are not a protected class, but the EEOC believes employers face liability based on two legal theories: “disparate treatment” or “disparate impact.”ĭisparate treatment occurs when an employer treats a person in a protected category differently than someone who is not in that same category, such as hiring a white man, while rejecting a black man with the same conviction. The subtleties and differences of state and local laws are best left to an employer and its legal counsel to determine best compliance methods.Įmployers should next become familiar with the Enforcement Guidance issued by the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcement of anti-discrimination laws. Oregon and the city of Seattle both prohibit any inquiry about criminal convictions on the job application or as an initial applicant screening tool. Washington state only allows employers to conduct credit checks if it is “substantially job-related” and the reasons are disclosed in writing. Some state laws, including those in California, restrict or prohibit the use of criminal background checks. A host of local, state and federal laws limit an employer’s ability to dig up dirt on prospective hires.Įmployers first need to seek out advice as to what laws apply - generally governed by the laws where operations are located and where their employees work. With these goals in mind, many employers go to the extreme and conduct criminal and credit background checks on all prospective employees and ban anyone with a poor history. All employers have an interest in a violence-free, safe workplace for their employees, and they want to mitigate against negligent hiring claims.
Cannabis businesses understandably want to protect their product - and for retailers, the on-hand cash - from theft.
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