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Ex-convicts in work force pose liability problems

California employers would be wise to take another look at their criminal background check policies in light of the possibility the state may be forced to release many prisoners early because of jail overcrowding, say some observers.

Many employers, particularly large corporations, already have such policies in place. Nationally, all employers must contend, though, with myriad state laws limiting how they may use this information as well as concern by the Equal Employment Opportunity Commission that these checks have a disparate impact on minorities.

In California, a three-judge federal panel has refused to delay a plan to release more than 40,000 inmates from the state’s overcrowded prison system. Gov. Arnold Schwarzenegger’s administration is appealing the decision to the U.S. Supreme Court, and the Legislature is considering the issue, but its ultimate resolution remains uncertain.

In light of the possible releases, “I think it’s a good idea to review company policies and decide what’s appropriate under the circumstances if it hasn’t already been done,” said Christopher W. Olmsted, an attorney with Barker Olmsted & Barnier P.L.C. in San Diego, who said he does not expect violent felons to be released.

Anthony J. Oncidi, a partner with law firm Proskauer Rose L.L.P. in Los Angeles, said, “the more reasonable employer should be more vigilant than ever about doing employment screening and background checks on applicants, because there’s going to be a number of unemployed, former convicted criminals dumped on the street who presumably will, among other things, be looking for a job.”But firms should take care when constructing or amending background check policies, experts say.


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