Actually, I assume that it must be, but it just seems so wrong that I have to wonder.
I’m starting a new job next week for a government contractor. I’ll be dealing with some potentially sensitive data, so I wasn’t surprised by the obligatory urinalysis, the state and FBI background checks, or even the fingerprinting.
In reading over the qualifications for the job, I found out that a potential candidate for this position would be automatically removed from consideration by a felony conviction, a misdemeanor conviction, or even unpaid traffic tickets.
Okay, no huge deal there, I suppose.
What got me, though, was the fact that one did not actually need to be convicted of a crime to disqualify him for the job. The phrase “tried or convicted” was explicitly stated.
If I had been tried for a crime (which I never have, and which is why I got the job) but found innocent, shouldn’t that wipe the slate clean?
This is a private company, but the position I’ve taken is a government contract. Does that make any difference? Would it make a difference if I’d been hired directly by the government? Would it make a difference if the prosecution realized their mistake and dropped all charges against me before a jury got its hands on it?
In the land of “innocent until proven guilty,” I’m seriously having trouble grasping what appears to be a blatant disregard for the foundation of our judicial system.
Can any of the SDMB’s legal minds help me unravel this one?
I hadn’t either, which is why I found it so strange, but the papers are sitting right here in front of me, and are not the least bit ambiguous in their phrasing.
Really every part of the job description is daunting; it’s mission-critical, so you will show up to work no matter how much snow is on the ground, and calling in sick necessitates phone calls to five different numbers, not including finding your own replacement, which you will do, or risk termination.
Not really. Just an assload of bureaucracy - probably even more trouble than it’s worth, but there is a lot of room for advancement, and computer jobs aren’t easy to find around here right now.
IANAL, but I am an HR person. In general, pre-employment requirements are not illegal in and of themselves (with a few exceptions, for example asking about disability). They do, however, create a legal risk if someone argues that they are discriminatory. Asking about arrests is generally thought to be discriminatory, on the grounds that innocent minorities are more likely to be arrested than innocent whites. So my intuition on this is that if a minority who had gone to trial but was found not guilty (or they dropped charges, or whatever w/o a conviction) applied for the job and didn’t get it, that person might be able to file a discrimination charge. At that point lawyers would debate whether “going to trial” was subject to the same logic as arrests, and whether the need for security outweighed the possible discriminatory potential. Maybe the lawyers for this company have already debated this and decided it was the best approach. Or maybe not. Or maybe there is a law against asking about being tried on a charge that I am not aware of, in which case I hope a legal eagle will weigh in.
I’m going to use my bump here (it’s always a bad idea starting a GQ on a Friday afternoon, moreso when it’s Super Bowl weekend).
I jumped through even more hoops today with the fingerprinting part of the job. The trooper who did the printing had never even encountered a form like mine - evidently, rather than just storing it on file, they’re going to check my prints against both the state and FBI databases (so it looks like I’ll have to wait another week to start). When the guy who does fingerprinting all the time has never seen the form I’m handing him, well, damn, I really have to wonder what kind of data I’m going to be dealing with!
Anyway, while I do appreciate the excellent replies thus far, a bit more information would be greatly appreciated.
I’m going to re-iterate Harriet’s comments. I ain’t a lawyer neither, but I do have some HR background (I teach the course in an MBA program.) Generally, an employer can set any conditions they want. This is part of the whole “employment at will” concept (different from the European concept of “contractual employment.”)
Primarily, the only major restriction is that the employment conditions cannot discriminate based on race, religion, ethnic background, gender, age over 40, or disability [sub]unless such restriction is a bona fide job qualification[/sub]. There can be practices which, on the surface, do not discriminate but yields results that are discriminatory. Such practices are held illegal by reason of “adverse impact.” This is what Harriet is talking about: if you could show that the majority of applicants who were rejected because of being arrested (but not convicted) were black, say, then you’ve got a case that the hiring practice is defacto discrimination.
Now, one hitch: “national security” is an allowable exemption from the discrimination rules. How being arrested but not convicted would be a matter of “national security,” God knows, but…
In short, yeah, they can exclude you for being arrested even if you’re not convicted. They can exclude you if you drive an SUV. They can exclude you if you wear brown shoes to the interview or if you’re wearing a wristwatch.
Government work, security clearances and that sort of thing make it a whole different ball game than completely private sector employment. For example, in my state, employers can only ask about convictions, not arrests- except for the jobs ( like mine with a law enforcement agency) where they can ask about arrests and the facts of an arrest can be considered in hiring (and firing) decisions.
Most likely the person who drew up the form in the first place was a moron.
A long time ago, when working for a large UK/USA company, we were shown their sales contracts and told to read the small print.
Two of the six of us pointed out that they were illegal under UK law, by then they were getting nervous of us so they consulted the in-house legal department.
An hour later the legal eagles came back, presumably after consulting some real lawyers.
Those contracts were illegal.
Probably the jerk who drew up the form had been watching a courthouse drama.
I (and DSYoungEsq, apparently) took this to be a comment on the employment papers mentioned in the OP, and the consensus in this thread is that the restrictions are legal.
And how do you reach these conclusions? I note a key fact in your story:
So, a multinational company. It seems to me that it was likely that the contracts were drafted based on the law of a country other than the United Kingdom. This kind of thing is rather common in cross-border operations and it does not lead to the conclusion that the person who drafted them was either (1) not a real lawyer or (2) a jerk who learned law from television. If there was someone to blame, I should think it would be the manager who decided that the contract language could be used without country-specific legal review. Actually, isn’t that what you were asked to do? So, maybe someone did consider the problem.
Although I work in a prison, you would still think that political affiliations would be part of legitimate free speech, and particularly those of parents and grandparents, even under UK law.
Yet these are included in background checks.
Once you think about it though, there’s a logic, since prisons can and do contain terrorists, those who operate terrorist organisations, along with all the usuall assorted criminal organisations.
Ones political background could have a huge bearing on security.
We in the UK have decades of experience dealing with highly organised terrorists within our prison sysem.
I work in a secure prison, but its certainly not one of those that houses the terrorist grade of prisoner, however, since I am classed as a mobile grade, I can be called upon to work in such a place, result is that my clearance has to be at the same level as anyone else working as a mobile grade in the prison system.
On top of that, there is another requirement, again its politically oriented. Staff membership of racist organisations is not allowed, it has been deemed incompatible with the aims of the organisation and its values - again, where does ones personal free speech end ?
Its possible that the OP isn’t working on seriously sensitive material, but the possibility exist that they might, if not now, perhaps on some future promotion or move.
The fact that FRDE ran into a situation under UK law in which a contract’s provisions were illegal does not mean that the situation in the OP is the result of a moron’s drafting, or that the provisions complained of in the OP are illegal. Indeed, in this thread, the concensus is that they are (probably) legal.
While not a government employer, we do require background screening as a condition of employment and unresolved arrest or warrants will cause a rejection. Official court documentation must be provided to confirm that any issue has been resolved in a positive manner before hiring can proceed. If already employed, an arrest can lead to being placed on unpaid leave of absence until documentation of positive resolution can be provided (positive resolution meaning that you have been cleared).
Just an assload of bureaucracy - probably even more trouble than it’s worth, but there is a lot of room for advancement, and computer jobs aren’t easy to find around here right now.