What about your non-hiring policies?

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John O'Connor
John O'Connor

When it comes to bringing on people with a criminal past, senior living organizations can find themselves in a real bind.

On the one hand, many state and federal laws put specific prohibitions in place that prohibit a hire, no matter how qualified a candidate appears to be. Yet at a time when finding staff has been more challenging than ever, every reasonable way to fill much-needed vacancies needs to be considered.

So what is an operator to do? According to a legal expert who spoke Tuesday at the American Health Care Association / National Center for Assisted Living meeting, the answer is this: Tread carefully.

Thomas Keim, a partner at Ford Harris LLP, had the unenviable task of providing a labor-law update at 8 a.m. on a Tuesday morning in Las Vegas. But for the bleary-eyed attendees who trudged to his session, the payoff was well worth the effort.

One of the more interesting issues he tackled was how to draw the line when considering job candidates with a criminal record. Beyond statutory limits, many organizations have their own prohibitions, which may or may not stand up to close scrutiny.

For example, if your community has a rule against hiring drivers with multiple moving violations, that may be okay. After all, it is not terribly difficult to make the case that such hires might pose a real health and safety risk to residents in the same vehicle.

But what happens when a policy is less easy to defend? For example, what if your community has a zero tolerance policy when it comes to hiring people who have been arrested for anything? Many juries may find “just because” to be a less-than-adequate justification.

Keim said that what's especially significant is that a non-hiring policy is something you can defend. You need to be able to articulate why the policy exists and be consistent in applying it.

Does that mean you won't be challenged in court? Hardly. After all, anyone can file a lawsuit. But this approach may help keep you on the right side of the law, regardless of where the law happens to drift.

John O'Connor is editorial director of McKnight's Senior Living. Email him at john.oconnor@mcknights.com.

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