JSH Reporter Summer 2014 - Page 18

BACKGROUNDCHECKSARTICLE 018 of reasons. Even if an individual is charged and prosecuted, he or she is presumed innocent unless proven guilty in a court of law. Therefore, an adverse employment action based on an “arrest”, in itself, is generally not job-related or consistent with business necessity. But, in some circumstances, even without a conviction, the conduct underlying an arrest may make the individual unfit for the position in question. In those circumstances, the conduct, not the arrest, is relevant for employment purposes. Employers should consider seeking legal advice before taking any adverse employment action based on the conduct underlying arrest to ensure compliance with federal law. An employer’s potential liability under the doctrine of negligent hiring requires employers to weigh the potential disparate impact of their hiring policies. This should not discourage employers from [