Has your workplace experienced an increase in theft? If so, you’re probably exploring different loss-prevention measures—including taking a closer look at your current employees.
As this case shows, running newon your current staff is not, by itself, a discriminatory act. Just make sure that before the checks begin, you set clear standards on how you will react to the results.
The safest bet is to adopt a multipronged approach that doesn’t just single out current employees with criminal records.
Recent case: A Texas-based trucking company began to experience a string of large-scale thefts, including the disappearance of truckloads of packages from the facility and tool theft from lockers.
In response, the company installed surveillance cameras, retooled locks and expanded its prehire criminal records screening. It then refused to hire anyone with a criminal record it believed might make the applicant more likely to steal. This didn’t slow down the theft.
Then the company announced it would be reviewing the criminal records of all current employees. It established standards to determine whether current staff with records could keep their jobs. Factors included violent felony convictions, unlawful sexual behavior, theft, fraud, embezzlement, possession of stolen goods andin the past 15 years.
Also on the list: any felony related to the sale, possession or distribution of illegal drugs or controlled substances in the past seven years.
Thomas, who is black, worked as a body technician. When he applied, he checked a box on his application that indicated he had been convicted of a crime in the past seven years. He wrote that his crime was marijuana possession.
At the time, convictions like his didn’t bar hiring.
When supervisors reviewed Thomas’ conviction as part of the new crackdown, they took into consideration that he had done jail time and believed he might have possessed more marijuana than usual for personal use. So Thomas was terminated under the new rules.
He sued, alleging race discrimination, and arguing that the company’s use of criminal records had a disparate impact on his race.
The court tossed out his case, saying the company took other steps to stem the theft losses before coming up with a new criminal-history policy, and it set consistent standards in its follow-through with the rules. (Dade v. GRA-GAR, No. 3:13-CV-0318, ND TX)