Employer has a right to know criminal history

Sunday, March 27, 2016

Perhaps it’s laudable when a business makes a concerted effort to make a job available to someone with a criminal record. But in typically short-sighted fashion, a new bill at the State Capitol that that gesture in precisely the wrong direction by making it a matter of law that Colorado businesses cannot ask job applicants in their initial application if they have a criminal record. The bill also makes a one-size-fits-all decision for the vast majority of businesses that they cannot decide for themselves which jobs will not be offered to those with a criminal history. 

House Bill 1388, sponsored by the usually thoughtful and practical Rep. Beth McCann (D-Denver), is particularly ill-advised in light of recent events.

Just last month, Cedric L. Ford killed three people and wounded 14 others in a violent rampage at Excel Industries, the Hesston, Kansas, factory where he was employed.

According to KMBC-TV, Ford had felony convictions in two states. His rap sheet included burglary, grand theft, illegally carrying a concealed weapon, domestic violence, felony battery, disorderly conduct, drunken driving, and obstruction of justice.

In 2008, Ford completed an anger-management class after his conviction for disorderly conduct. About 90 minutes before his attack on his co-workers, he had been served with a restraining order because an ex-girlfriend stated Ford had choked her and she believed he would attack her again.

It’s not clear whether Ford’s employer knew about his criminal history, but what should be painfully obvious is that the employer had a right to know.

HB 1388 would, with limited exceptions, make it illegal for employers to ask potential employees about their criminal record on employment applications or from stating that someone with a criminal history cannot apply for a certain position.

While well-intentioned, the bill is fatally flawed in at least two respects:

  • First, when an employer has a job to offer, it is the employer’s sole prerogative. That job does not belong to a prospective employee and certainly not to Colorado state government. An employee can walk away from the job without notice, and if the business fails, the employee is not financially responsible. Responsibility for the business lies with the employer, whether it succeeds or fails. Thus, the job, by right and by logic, belongs to the employer. 
  • Second, employees reasonably expect that their employer will take reasonable precautions to ensure their safety, whether that means keeping the facility and equipment in good repair or making prudent decisions about people whether potentially dangerous people will be added to the workforce. 

Because it focuses solely on placing people with a criminal record in a job, HB 1388 ignores the rights and responsibilities of employers to their other employees and for their business.



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