61 Fla. L. Rev. 581 (2009) | | | |

INTRODUCTION :: In January 1978, Ed Harbour picked up a seventeen-year-old hitchhiker on his Indiana truck-driving route. He brutally raped and beat her, leaving her near death in the sleeping compartment of his truck. Astonishingly, this took place merely one year after Harbour was convicted of the aggravated sodomy of two teenage hitchhikers. An adequate pre-employment inquiry into Harbour’s criminal history would almost certainly have resulted in his employer rejecting his employment application and therefore might have prevented the beating and rape of a seventeen-year-old child. Unfortunately, this is not an isolated phenomenon. In fact, because employees commit crimes on a regular basis, pre-employment screening may prevent all kinds of egregious offenses. Therefore, it makes sense that when employers fail to make adequate inquiries into the criminal histories of prospective employees, they may be subject to liability under the doctrine of negligent hiring.

However, the imposition of negligent hiring liability in such circumstances has not been without its societal consequences. This tension is the topic of this Note. In particular, this Note examines one problem flowing from employers’ attempts to avoid negligent hiring liability through the use of criminal background checks: drastically reduced employment prospects for ex-offenders. As a solution to this problem, this Note suggests the imposition of certain national limits on the use of criminal background checks, and concludes that only such an approach would appropriately balance the interests of employers, ex-offender employees, and society at large.

To this end, Part II.A discusses the important role negligent hiring doctrine plays in American employment law. Part II.B then examines the effectiveness of the particular devices employers use to inquire into the fitness of prospective employees and to limit their negligent hiring liability. Part II.B concludes that criminal background checks are the most effective (and thus most used) liability-limiting device.

Part III then turns to the paradox created by the increased use of criminal background checks in employment decisions, a phenomenon this Note terms the “Criminal Record Revolution.” Because of the negative stigma attached to criminal records, employers may refuse to hire prospective employees with criminal histories, or at least those with certain convictions, and may discharge employees who run into legal difficulties while employed. At the same time, however, statistics show that 53% of jail inmates were already on probation, parole, or pretrial release at the time of arrest, and that offenders released from prison have more than a 67% chance of being re-arrested for a serious misdemeanor or felony within the three years following their release. In order to break this cycle of recidivism, some statutory protection must be available to employees looking to find meaningful employment. Otherwise-lacking an opportunity to earn an honest living-an ex-offender will have little incentive not to return to a previous life of crime. Accordingly, Part III examines some of the statutory and common law protections available to ex-offender employees and explains why current protections are inadequate as a solution to what has become a national problem. Part IV.A argues that at least some degree of federal preemption is desirable to inject certainty into an area of the law that has traditionally engendered blurry boundaries-the law governing the proper use of criminal records in employment decisions. Part IV.B suggests the proper scope of such a solution in light of employers’ and employees’ competing needs, and concludes that New York’s approach best balances these needs. Specifically, Part IV.B suggests that all employers (both public and private) should be prohibited from making adverse employment decisions on the basis of past offenses that did not result in conviction. Moreover, adverse employment decisions based on past convictions should be permitted only where (1) there is a direct relationship between the past conviction and the specific employment sought or held; or (2) the specific employment sought or held would pose an unreasonable risk to specific individuals or to society at large. Part IV.C suggests the appropriate method of implementing this solution: an amendment to the Fair Credit Reporting Act.