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How Much Should Employers Know?
March 01, 2011 posted by Steve Brownstein
by Emily Gurnon
After a 15-year-old girl was raped by a convicted sex offender who worked at RadioShack in New Prague, MN, her mother and a friend confronted the store owner.
Why hadn't he done a background check, the friend asked.
The man conceded that the applicant told him "he had done something in Illinois with a girlfriend" and had gone to jail or prison.
But the owner told the applicant that he "believes in second chances," and so he hired him, the girl's mother said.
Store owner Monty Dehn now faces a possible lawsuit, and worker Bradley O'Donoghue — who raped the young customer on a sofa in the store's backroom — has pleaded guilty to criminal sexual conduct in Le Sueur County.
State law requires some employers, mostly in the public sector, to do background checks on workers. Retailers are not required to do them. Many companies do them simply because they want to avoid the kind of liability the RadioShack owner now faces.
And there is little law in Minnesota that prohibits employment decisions based on the worker's criminal history.
But the Department of Human Rights cautions that a hiring policy could be deemed discriminatory when a minority member is restricted from employment based on his or her criminal record.
"The employer is put between a rock and a hard place," said Minneapolis attorney Marshall Tanick, who works in employment law.
"Generally speaking, the law gives broad discretion to employers to do these background checks, and it does not intervene much in the employer's decision whether to hire or not hire someone, unless there's fairly clear racial discrimination," Tanick said. "And even those cases are very hard to pursue."
Dehn's attorney in the possible civil suit, Deborah Eckland, said she could not talk about the specific case. But she said it's common for small employers to skip background checks.
"In terms of smaller places, I know I've been surprised by what I've found, that they don't do them routinely," Eckland said.
"I will tell you that Monty Dehn is a very conscientious person and the nicest person you'd ever want to meet, and wouldn't put himself in this position for anything."
Attorney Michael Padden, who is representing the girl's mother, said he believes Dehn should have known not to hire O'Donoghue based on information he had about O'Donoghue's history.
"We contend that the owner of the RadioShack in question knew that this guy had a past sex crime history before he hired him," Padden said. "If you know that ... and you know that person is going to be interacting with minors, at the very least you should make sure he's not working in the store alone.
"So it's negligent hiring and negligent supervision," he said.
O'Donoghue's previous conviction involved fondling and kissing a girl in Illinois who was under age 13. He was required to register as a sex offender. Initially sentenced to six months in jail in 2002, he violated his probation and drew a 4 1/2-year prison sentence in Illinois.
Eric S. Bruner, a spokesman for RadioShack Corp., said an independent dealer operates the New Prague store.
"We understand the serious nature of the allegations, and we believe the local operator responded swiftly and appropriately in this situation," Bruner said. "Because the dealers and franchises are independent small businesses, we don't normally discuss their personnel practices."
O'Donoghue's criminal attorney, Anthony Nerud, declined comment on his case.
But he said that small-town employers might take a less critical look at prospective employees and do background checks less often.
"Folks don't generally anticipate bad guys living amongst you," Nerud said. "You want to presume the best; you don't want to presume that the person is a perp of some sort."
In larger cities, he said, "(The applicant) is not somebody you're going to see on a daily basis if you reject them."
O'Donoghue lived down the street from the RadioShack where he worked.
The Minneapolis-based Council on Crime and Justice works to educate employers on how to interpret criminal background checks and make smart decisions based on them.
"We're not necessarily saying, 'Don't look'; we're saying, 'Understand what you're seeing,' " said Pamela Alexander, the group's executive director.
When background information is so widely available, many employers use it without fully understanding it, she said. For example, a person might miss out on a job because the record shows an arrest, but no charge or an acquittal.
"Then it stops them from being able to get on with their lives," Alexander said.
Even those with low-level crimes might find it nearly impossible to get jobs or apartments.
Alexander said sex offenders make up a small portion of criminals, and their inclusion in a national database makes it easy for prospective employers to check on them.
Employers often make it easy on themselves by asking job applicants to sign a "voluntary" waiver. The document may give the employer permission to seek information, from criminal and driving records to credit checks and education history.
"Those background-authorization forms give employers almost carte blanche to gather any and all information about employees," said Tanick, the employment law attorney.
In one of his cases, an employer sought records going all the way back to kindergarten, he said.
