Should tribal employers use arrest and conviction records in hiring and retention decisions?

Yes.

Due diligence in hiring and retaining good employees is consistent with sound managerial and legal practices.  Criminal background checks, reference checks, interviews and scrutiny of employment applications comprise some of the due diligence performed by prudent employers.  Once the employer performs the due diligence and gathers the facts, are there limits on the use of those facts in making employment related decisions?

Of course there are limits on the use of the facts developed by employers in the due diligence phase of hiring.  Tribes are equal opportunity employers and therefore do not discriminate based on specific classifications.  In other words, tribal employers do not take into account the applicant’s race, religion, national origin, gender, age, and other defined classifications in making hiring and retention decisions.  The applicant’s work ethic or history of violence is relevant to a hiring decision while the employee’s gender is not relevant.

In some instances tribal employers must take arrest and conviction records into account when making hiring and retention decisions.  The Indian Child Protection and Family Violence Prevention Act (101-630) compels tribal employers to gather and evaluate criminal convictions in hiring and retaining employees who have regular contact with children.  Moreover, under the character assessment aspect of the law, arrest records may be taken into account in complying with the mandates of the law.

Outside of 101-630 should tribal employers examine the use of arrest and criminal records in hiring and retention decisions?

The federal government’s Equal Employment Opportunity Commission (EEOC) does not have jurisdiction over the activities of tribal employers but the agency’s analysis of the use of arrest and criminal records is instructive.  The EEOC asserts that since people of color are arrested and convicted at a greater rate than their representation in the population, care must be taken in applying arrest and conviction records to employment related decisions.  Since people of color are arrested and convicted at a higher rate, that reality may be evidence of illegal discrimination.  To guard against the risk of undermining the tribe’s pledge to be an equal opportunity employer, consider at least three factors in making these decisions:

1. The nature and gravity of the criminal offense(s);
2. The time that has passed since the conviction and/or completion of the sentence; and
3. The nature of the job held or sought.

In addition to the these factors, where arrest records show no conviction, employers should evaluate whether the arrest record reflects the applicant’s conduct.  According to the EEOC individuals are “presumed innocent unless proven guilty;” therefore the “arrest record standing alone may not be used to deny an employment opportunity.”  However, the EEOC allows an employer to make an employment decision based on the conduct underlying the arrest if the individual would be unfit for the position because of the conduct.  Because of the inherent challenge in this analysis, some employers rarely use arrest records in their hiring and retention practices.

Recommendation:  Tribal employers sometimes must and always should perform the necessary due diligence in hiring and retaining good employees.  Once the employer gathers the information, sound policies should be in place to utilize the information in a manner which avoids liability and insures a fair hiring process.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.