Seattle Employers Could Soon Face Legal Dilemma When Hiring New Workers
Erin Shannon, Director, Center for Small Business, January, 2013
The Seattle Times published this column on January 30, 2013.
Seattle is often the incubator for bad business policy. In 2011, the city became one of the few in the nation to mandate paid sick leave for all workers. Now the Seattle City Council is considering an ordinance that would make Seattle one of the few to restrict employers’ ability to conduct criminal-background checks on potential employees.
If Council Bill No. 117583 is approved, employers in Seattle would no longer be able to inquire about a potential employee’s criminal history, nor would they be able to conduct a background check until a “conditional” offer of employment is given. Employers would be prohibited from refusing to hire an applicant because of a past arrest or conviction unless there is a “direct relationship” between the criminal record and the job sought.
The proposal puts employers in the likely litigious position of determining whether a “direct relationship” exists or whether it is “reasonably foreseeable” that employing the applicant will result in harm to people or property. Employers would be caught in a Catch-22, facing potential litigation if they reject the applicant or if they hire the applicant and that applicant causes harm while on the job.
Imagine the cable repairman coming to your home. The cable company would know he has a criminal record but it was forced to hire him because the company could not prove it is “reasonably foreseeable” the repairman would harm someone while on the job.
Supporters of the proposal believe it would increase public safety by reducing the likelihood of criminal recidivism. The theory is that when people with a criminal record cannot find a job, the chances increase that they will become repeat offenders.
Efforts to help those with a criminal record find a job are laudable, but this proposal has significant unintended consequences.
Companies conduct background checks for many reasons, chief among them to decrease their liability for criminal acts committed by their employees. And for good reason.
Employers lose 72 percent of negligent-hiring cases and the average settlement against employers is $1.6 million, as courts have repeatedly affirmed it is an employer’s duty to ensure a safe business environment for their employees and consumers.
Accordingly, 69 percent of employers conduct background checks. Fifty-two percent of those employers use criminal screening to reduce the liability of negligent hiring, and 49 percent do it to ensure a safe working environment.
Seattle’s proposed ordinance would essentially force employers to hire applicants with a criminal history unless the employer can prove the subjective “direct relationship” and “reasonably foreseeable” standards.
Removing employers’ decision-making power when it comes to whom they hire is not only bad policy, it is unnecessary. Washington state already has laws protecting those with criminal records from unfair employment practices. And the U.S. Equal Employment Opportunity Commission recently issued stringent new guidelines making it clear employers cannot refuse to hire someone solely because the applicant had been arrested or convicted.
People should be given a chance to turn their lives around, even if they have a criminal past, but this should not be hidden from employers until after a job offer has been extended.
Seattle’s proposed policy backs employers into a corner. Instead of making decisions based on what they think is best for their company, their employees and their customers, they would be motivated by fear of exposure to legal challenges of proving subjective terms like “direct relationship” and “reasonably foreseeable.”
Seattle already imposes a greater burden on business owners than any other city in the state. Policymakers should consider the real impacts of the proposed criminal-background ordinance.
Forcing employers to hire applicants with criminal records could make workplaces less safe, increase employer liability and make it harder to expand opportunities and create jobs in Seattle.