Drawing the line on criminal background
June 1, 1997 4 minutes read
Drawing the line on criminal background
Question: We are setting up a policy for conducting criminal background checks on job applicants at the hospital, but we’re not sure where to draw the line. Should any criminal history whatsoever mean immediate disqualification? Should the standards be different for different jobs and for physicians?
Answer: There are no definite rules for what criminal history should disqualify an applicant, so you have to decide on a case-by-case basis, says Sam Bishop, ARM, director of risk management for Promina Northwest Health System in Atlanta. It would be overly strict
to say that any criminal history at all disqualifies the person from employment. Rather, you have to look at exactly what the criminal history is and how it might be pertinent to the job in question.
You also must be careful not to violate the applicant’s rights, which can require some careful maneuvering.
If you decided that you would not hire anyone with any type of criminal history, you would be excluding a significant number of applicants, including many who would turn out to be excellent employees. It is better to focus on certain types of criminal history and patterns of criminal behavior, Bishop suggests.
For instance, you may want to pay more attention to any record of theft or drug offenses, because some hospital employees would be in a position to repeat those crimes. The risk of repeating those crimes would not be as great for some workers as for others, however. You may be justified in looking more critically upon a nursing applicant with a history of drug theft, for instance, than a maintenance worker who has a record of petty theft.
Other factors also are important. How long ago did the crime occur? How serious was the crime? A theft that occurred 20 years ago when the applicant was 18 years old should be of less concern than a theft that occurred last year. Likewise, a petty crime should carry less impact than a major transgression.
Also consider whether there is a pattern of criminal activity. Even if the crime in question would not seem to have a direct impact on the health care facility, such as drunken driving, a pattern may indicate a person with significant personal problems that could lead to inappropriate behavior in the workplace.
Crimes involving violence against other people should be a red flag. Any worker in a health care facility is exposed to a large number of co-workers and patients on a daily basis, including many patients who easily could be victimized. For crimes involving violence, it would be reasonable to have a very low threshold for disqualifying applicants.
The actual process of conducting criminal background checks sometimes is more useful than the results of the investigation, Bishop says. His health system has a long history of conducting criminal background checks on all applicants, and he says the policy discourages many bad apples from even applying. Unlike many facilities that conduct background checks, Promina actually collects fingerprints from all applicants except physicians and submits them to legal authorities. That occasionally has turned up people who lied about their identity.
"We’re very clear in the whole process that we will be taking fingerprints and checking their criminal backgrounds, so if they have anything really serious to hide, they just opt out of the application process before we get to that point," he says.
For those who do not withdraw their applications, the policy encourages them to be honest about their criminal backgrounds. If the background check reveals that they lied about their criminal history, that is a problem in and of itself. Bishop says lying usually leads to automatic disqualification even if the actual crime was petty and distant enough that it might have been accepted.
With physicians, Bishop suggests that a criminal background check is not necessary, but it is advisable to ask them about any criminal history. For a physician, it might be best to ask specifically about any issues that would be most troublesome, such as a history of drug problems, drug theft, or sexual misconduct. The overall credentialling process usually reveals any such problems. The biggest concern with physicians is chemical dependency, and that usually will be reported by the National Practitioner Data Bank and your state medical board. If you decide to perform a criminal background check on physicians, the same decision-making process should apply.
Consider the circumstances
If you find that an applicant has a troubling criminal background, Bishop says you may not want to decide immediately whether to disqualify the applicant. It may be better to investigate the crime further by talking to probation officers, defense attorneys, prosecutors, and others who could shed light on the applicant. You should obtain written permission from the applicant before contacting anyone.
When the applicant has been charged with a crime but not convicted, that usually shows up on a background check. Bishop suggests you still should consider the circumstances and applicability of the charges. In some cases, his facility has postponed a hiring decision until after charges were resolved in court.
If you determine that an applicant’s criminal background is grounds for disqualification, you probably should not use that as the actual reason for not hiring him or her. Basing a hiring decision solely on the criminal background would leave the health care facility on shaky legal ground, Bishop warns. Instead, gravitate toward an applicant who generally is better qualified.
Set your priorities
Sometimes there may be cases in which you have no better applicant but do not want to hire a person because of his or her criminal background. In that case, you may have no other choice than to risk a charge of improper hiring practices.
"If we have someone who is a convicted pedophile applying for a job on the pediatric unit, I’d much rather defend my decision not to hire him than put him in a situation where patients would be vulnerable," Bishop explains. "I’d just tell him that we can’t hire him because he poses a risk to patients, and we’d risk the lawsuit."
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