Employing a felon…legal question? (long)?

by admin on October 27, 2010

Hello. I am in a bit of a quandary. I am the owner/chef of a small, fine-dining establishment and recently had a server position open up. I had many applicants but only two meet the experience requirements that I deemed necessary to qualify for the position. I am truly at a loss as to which of these applicants to hire. I’m curious as to what others think. I’ve already asked the advice of some other small business owners and I will detail their recommendations as well.

Candidate #1 is a full-time college student who lives at home. She attends classes in the mornings and the position is a late afternoon/evening only job. She meet the minimum requirement that I stipulated which was 3 years experience in a full-service restaurant. I informed her that this job would demand that she work every night from Thanksgiving to New Year’s with only Christmas night off. (This is a permanent position but I will need someone every night for those weeks – no off time). Her references were generally good but hesitated when I asked if they would rehire her. They didn’t say no, but two of the three declined to answer. Also, she’s worked at three different restaurants in the last three years and I’m looking for someone who is going to stay for at least 2 years if not longer. She came across as friendly and personable in the interview but was sketchy on her knowledge of wine (this is important) and new American cuisine but expressed eagerness to learn. When I asked for her alcohol seller’s permit and food handler’s certificates, she explained that she had allowed them to lapse but would be able to renew them easily before beginning employment. This is true.

Candidate #2 is a professional waiter who has a total of 10 years experience, seven of them in fine dining. He had fairly extensive knowledge of both wines, the cuisine that I cook, and general operations and expectations in a fine dining environment. His permits and certificates were current and valid. His references were good but somewhat dated. He came across in the interview as articulate, knowledgeable, and was considerably better dressed than candidate #1. He is also college educated but with a 2 year degree. He is not attending college currently and is living with his wife. For me, this gentleman would have been the clear choice except for one thing: he is a convicted felon who served two years in prison for prescription fraud. He also had a DWI a number of years ago. He was released last June and has completed all of his legal obligation. I have verified this.

Candidate #2 explanation in the interview was that he was involved in a serious car accident in 2006, was prescribed narcotics for pain management and subsequently developed a dependency on the medication he was taking. He said that he was unable to cope with the severe withdrawal symptoms that accompanied the discontinuation of this prescription and thereafter forged the prescriptions. He was caught, convicted, and was confined for two years for this crime.

I have received conflicted advise from other business owners on this matter. Some believe in giving Candidate # 2 a second chance particularly since he is by far the more qualified of the two applicants. But most others have told me that, for reasons of legal liability, insurance, and the overall safety of their workplaces and their employees, they would never hire an ex-offender no matter what their level of education, skills, experience, or how good their references were. The conviction itself, be it recent or long ago, is an automatic disqualifier despite what is stated on their (and mine as well) employment applications, re: a conviction is NOT an automatic bar to employment. (Could I be sued for this?)

Both the references and the interview tipped in favor of candidate # 2 and I genuinely liked this man but I just can’t get past that felony conviction and prison term even though this gentlemen is free and clear now. I’m curious as to what others think, particularly if you are a small business owner or manager. Thank you for your time in reading this.

Related Blogs

{ 5 comments… read them below or add one }

Griggnax October 27, 2010 at 12:48 am

I am not a business owner or manager, but I am involved in the hiring process of my company.

What’s more important to you…The skills and abilities needed to help your business, or a single mistake that was made years ago, that the candidate was completely honest about, and for which he has served his time and made amends?

Very few people these days have never had a brush with the law. The type of offense candidate 2 had was not a violent offense, and actually drug addiction can be considered a medical disability in certain cases. If he’s clean and sober now, I fail to see any reason to not employ him.

There might also be tax credits available to you if you do hire him! The U.S. Department of Labor runs the Work Opportunity Tax Credit program through the fifty “State Employment Security Agencies.”

Here is a link I hope you find helpful:

http://www.ehow.com/about_5462794_employment-rights-convicted-felons.html

Jacob Frenzen October 27, 2010 at 12:48 am

When you can’t get a straight answer, I think it’s best that you consult a professional; this way, you know your rights and whether or not you might get sued. I know that with a Prepaid Legal plan, you can pay a small, monthly fee and have access to an attorney for a variety of legal matters year round. Hope this helps.

Angela October 27, 2010 at 12:48 am

I live in the Southwest. Here, at any given restaurant, probably half the staff or more are illegals who still can’t speak any English even though they’ve been here for years. And some of the Spanglish speaking waiters are very hard to understand. It’s frustrating for a customer.
I would rather hire an AMERICAN, even one with a few blemishes in his or her past. There is nothing in the law that says you can’t hire a felon, especially one like the man you describe above. His crime wasn’t THAT serious. It didn’t involve violence, weapons, or "hard" drugs. He did his time and if you ask me, two years in the pen was pretty harsh. A year in jail would have probably had the same effect. That being said, it is DEFINITELY illegal to hire a worker who is undocumented and that is a real problem where I live and frankly, we (the Anglo and black American populace) are sick of it and have begun avoiding restaurants that employ illegals.

I would hire #2. He has years of experience, the right knowledge, and his crime really has nothing to do with the job in question. If it were violence or theft, then okay but prescription fraud, come on….And with the holidays coming up, do you really want to train someone or do you want someone who is already competent? I’m sorry but this one is a no brainer to me. Besides, if you’re looking for someone who will stay, this is probably your guy.

J H October 27, 2010 at 12:48 am

Everybody deserves a second chance. Give this candidate a shot and explain he is on trial for a probationary period. if it doesn’t work out hire the other guy

ShadowCat October 27, 2010 at 12:48 am

People that have served their time don’t need to be but in jeopardy again. You would not hire a Pedophile at a daycare center or school. But if they are open and honest with you give them a chance and keep an eye on them. You can always call 911 and fire them if they make another felony error.

Employers hire Illegals and it is a Felony , fines for it, but they still do it against Federal Law. The Illegal has committed a felony in Crossing the border without proper authorization.

Some even become lawyers and judges others become repeat offenders because they can’t get a fair shake in life.

Leave a Comment

Previous post:

Next post: