Today’s guest post is from my good friend and law partner, M. Clark Spoden, who focuses on business litigation, labor and employment, environmental and construction law. The full article was published by Construction Executive. You can contact Clark at

Last April, the U.S. Equal Employment Opportunity Commission (EEOC) issued its long-awaited Enforcement Guidance regarding employers’ use of arrest and conviction records in employment decisions.

The guidance highlights the EEOC’s approach to using criminal records in background checks. Because claims can be made against employers by people who are injured by negligently hired or retained employees, firms need to know the risks involved in hiring decisions. Construction companies must walk the tightrope between potential claims of race discrimination by their employees or the EEOC, and claims by victims of those employees’ actions.

Essentially, employers must take due care to avoid presenting unreasonable risks of injury to their employees (and others), while limiting the use of arrest or conviction records in their hiring decisions.

Negligent Hiring. Negligent hiring and retention is a civil action (called a tort) recognized across the United States. According to the 2002 case Morris v. JTM Materials, Inc., an employer may be liable for negligent hiring if it knowingly (or should have known by the exercise of reasonable care) hires an incompetent, unfit or dangerous employee—thereby creating a foreseeable unreasonable risk of harm to others. In other words, a victim of a tort may recover against an employer for negligent hiring, supervision or retention of an employee if the victim establishes the elements of a negligence claim. The victim must prove the employer knew the employee was unfit for the job and verify the victim’s injury was foreseeable (see Phipps v. Walker).

It’s difficult for an employer to dismiss a negligent hiring claim without a trial. Given the importance of foreseeability, records showing a person has been arrested or convicted of a similar offense in the past could be used by the victim as evidence that similar conduct was foreseeable and could have been prevented by the employer by not hiring (or retaining) the employee.

The EEOC’s View of Arrest and Conviction Records.  Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex or national origin. According to the EEOC, approximately 6.6 percent of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes. Assuming current rates continue, approximately one in 17 Caucasian men will serve time in prison compared to approximately one in six Hispanic men and approximately one in three African-American men. In light of the relatively high conviction rates for African-American and Hispanic men, the EEOC issued its guidance in April 2012 as an update to prior policy statements about Title VII and using criminal records in employment decisions.

The EEOC found the reliability of criminal arrest and conviction records was suspect, stating “[A] significant number of state and federal criminal record databases included incomplete criminal records…[and] reports of documented criminal records may be inaccurate.” Additionally, the EEOC concluded third-party proprietary databases vary significantly in the types of information compiled and may be “missing certain types of disposition information, such as updated convictions, sealing or expungement orders or orders for entry into a diversion program.” In essence, “whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, religion, sex or national origin.”

For the rest of the article, click here.