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Michael Vick’s reinstatement into the National Football League is creating a lot of buzz in the employment law arena, where companies seek advice about using criminal records to make somewhat lower-profile job decisions. Employment lawyers say the case serves as a timely reminder to employers to review how they can obtain employee criminal records and how they can use them in hiring and firing decisions. The Vick case — in which the NFL on July 27 conditionally reinstated the quarterback after he served 18 months in prison on dogfighting charges — is unusual in that his criminal record was widely reported in the media. “They didn’t have to run to the courthouse to know what happened with Michael Vick, in which case the NFL was free and clear to take appropriate disciplinary action based on that information,” said management-side attorney H. Andrew Matzkin of Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. But that’s not how it typically works. Employers must take care to obtain information about criminal records “in a lawful way and use it in a lawful way,” said Matzkin, who noted he is seeing an uptick in calls from clients asking how they too can use background checks. “If we’ve got somebody who is doing stuff we don’t like outside of work, can we ask them about it? Can we find a way to see what they’re doing? And if we don’t like it, can we let them go?” said Matzkin, listing some of his clients’ questions. He stressed there are only a few ways that employers can scrutinize employees’ criminal records legally — one of which is learning the details through media reports or social media outlets like Facebook. The more common option is to proceed under the federal Fair Credit Reporting Act, which sets national standards for employment screening and allows companies to hire outside agencies to conduct credit checks and obtain criminal conviction records on current and prospective employees. Management-side attorney Brian Jackson of Chicago’s Fisher & Phillips believes the Vick case highlights the need for employers to conduct criminal background checks on current and potential employees, particularly those with high-level job responsibilities. Companies should also have employees and potential hires sign consent forms agreeing to background checks. “When you are looking at investing a great deal of money or giving a great deal of responsibility to an individual, you should really take advantage of these reports to find out what your employee has been doing since they first started working with you,” Jackson said. “Clearly, had the Atlanta Falcons looked into Mr. Vick’s background a little better, there may have been some red flags to go up before they invested [$130 million] in him.” (The Falcons signed Vick to that multimillion-dollar contract in 2004, after he launched his dogfighting business.) Still, Jackson said that employers should not go on a witch hunt. “You have to have a good faith basis for believing that a person has broken the law.” Other employment lawyers add their own warnings. Carrie Rosen of Philadelphia-based Cozen O’Connor, who advises companies on background check policies, cautioned employers against using arrest (as opposed to conviction) information in employment decisions. She noted that the U.S. Equal Employment Opportunity Commission’s position is that use of arrest information may have a disparate impact on minority candidates. She also noted that many states have laws that restrict employers from asking about or considering criminal records when hiring. For example, Wisconsin, California and Hawaii all generally prohibit employers from discriminating against an employee because of an arrest record. New York has one of the stronger “criminal use” statutes of most states, really limiting how an employer may use criminal records. New York law employs a multifactor test, requiring employers to consider the seriousness of the offense, the date when the offense occurred, the person’s age at the time of the offense and evidence of successful rehabilitation. New York attorney Mark Risk, who represents mostly employees, is skeptical about the usefulness of the Vick example. He said it teaches “all the wrong lessons.” “In most states strong public policies favor re-integration of ex-offenders into the workforce and seek to protect against discrimination based on a prior conviction,” Risk said. “An employer ought not deny employment to an applicant based on a prior conviction in a knee-jerk fashion.”

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