As we’ve had occasion to mention before (Sept. 24, 1999; Reason, Dec. 1999; Jan. 17, 2001), the supposedly progressive position in employment law has for many years been that employers should not be at liberty to take into account job applicants’ criminal records; the only conceded exception comes when a past conviction is closely related to a high risk of serious re-offense, as when an embezzler released from prison seeks a job handling money at a bank. Very much in the spirit of that progressive stance, Boston Mayor Thomas M. Menino “authorized a new policy two years ago eliminating questions about criminal convictions on all city job applications and dispensing with criminal background checks for applicants for jobs that don’t involve working with children or the elderly or accessing residents’ homes.”
How well did this new policy work out, you ask? Well, when Joseph M. MacDonald, a 26-year-old resident of South Boston, applied for a job with the Boston public works department, city officials never checked his criminal record because of the new “second-chance” policy. So they never found out about his long rap sheet (three drug convictions, seven drivers’ license suspensions) until Feb. 3, when police say MacDonald, riding his city snowplow, ran down a 64-year-old woman as she crossed a street, then fled the scene. (Donovan Slack, “Hit-run suspect had long record”, Boston Globe, Feb. 7; “Records show history of offenses”, Feb. 7).
So a hard lesson has now been learned, right? You must be kidding. Although the city has admitted that it slipped up in not checking MacDonald’s driving status, Mayor Menino and one of his human resources deputies continue to defend the broader policy on ignoring criminal records (“The mayor believes firmly in giving people a second chance,” said a spokeswoman after the incident.) And both Menino and newly elected Gov. Deval Patrick intend to press ahead with a previously announced plan to limit private employers’ access to job applicants’ criminal records, the better to enforce those obligatory second chances. (Andrea Estes, “Patrick seeks to limit background checks”, Boston Globe, Feb. 12)(via No Looking Backwards). More: Coyote Blog.
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The City Council in Washington DC floated a similar law this past year. The newspapers barely mentioned it.
Although I certainly don’t think employers ought to be prohibited from checking criminal records, this issue presents a real dilemma, thanks to (no surprise) trial lawyers.
If we’re going to let people out of prison, then we have to let them earn a living. But what rational business owner is going to want to hire someone with a criminal record, given that if this person does anything wrong, even off the job, a creative trial lawyer is going to try to find some way to target the employer?
Incidentally, with respect to the Boston snowplow driver (a) “only” two of the license suspensions appear to be driving related — although one would think that causing two accidents ought to be sufficient without having to worry about drug possession charges — and (b) checking someone’s driving history is (or should be) entirely different than checking his criminal record.
Sued if you do, sued if you don’t. If Justinian Lane or sympathizer could explain to me how we’re supposed to resolve this, please go right ahead. The number of persons emerging from the penal system is at an all-time high.