Run Like Hell!
Steven Cesare, Ph.D.
A unique business owner from Colorado called me the other day to share his unbridled elation surrounding the fact that he finally found his long sought after Landscape Maintenance Manager! During a seemingly interminable recruitment process, an impressive resume finally came across the business owner’s desk. An engaging interview quickly followed, leading to an imminent conditional job offer. The owner’s voice coupled relief and joy, with hope and gratitude. I was extremely happy for him!
The applicant was pure pedigree: a mature 50-ish male, with 20 years of experience in the green industry, saturated with business acumen, horticulture knowledge, and a personal humility that ensconced comfortably with the company culture. And then the owner said, “There’s one thing I have to tell you Steve.”
I knew exactly what he was going to say.
The applicant had an inappropriate sexual relationship with an adolescent many years ago. Apparently, one of the owner’s management team members conducted some independent research and found the applicant’s name on the state-wide Megan’s Law registry.
The owner said, “I know what Steve Cesare is going to tell me. Steve Cesare is going to say run like hell!”
Despite his accurate prediction, the owner proceeded to outline several convincing points to buttress his earnest desire to hire the applicant, while shading my protective stance: “The offense happened many years ago,” “he has paid his debt to society,” “everyone deserves a second chance,” “come on, Steve,” etc.
This is a multidimensional issue, blending an abundant array of antipodal factors: morality and legality, personal beliefs and public perception, company culture and business needs, emotional hope and mental suspicion, into a complex decision-making equation.
First and foremost, like many human resources issues, this topic must be viewed within the framework of state and federal law. For example, California prohibits employers from using a sex offender registry in any employment decision; conversely, Ohio has no such restriction. Beyond state law, federal law restricts an employer from administering a reflexive standard denying employment to anyone with a criminal history, including sex crimes. Instead, employers are forced to conduct an individualized assessment of the employee’s fit for the specific job in question based on criminal history (i.e., not hiring a convicted embezzler to be a CFO), the details of the crime, and any extenuating circumstances (e.g., subsequent employment history, formal rehabilitation, and the list of essential functions found on the job description).
Another complication is the potential for negligent hiring/retention, which requires the employer’s affirmative duty to protect employees, customers, business partners, etc. from risks the employer knew about or should have known. In short, the owner could be liable if a repeat offense was to occur. Moreover, the OSHA General Duty Clause implies employers must provide their employees with a work environment free from hazards that could cause them harm. Next, there could be significant impact on the company’s business operation and brand image if a customer found the same information on the Colorado Sex Offender Registry that the aforementioned company manager discovered. Do you think most landscape customers would feel comfortable with their vendor employing a known sexual offender at their residence, HOA, or job site?
Without softening my dissent, I suggested the owner move beyond my firm opinion and meet with his management team, discuss the pertinent and potential issues, spanning short and long-term timeframes, balancing commercial and cultural risks and rewards regarding the applicant, and develop a consensus hiring decision. Then as necessary, meet with external legal counsel to specify procedural compliance.
The management team decided to hire the applicant.
Interestingly, while this decision-making process was taking place, the applicant accepted a position with another landscape company.
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