A hospital may have broken the law by NOT hiring a convicted meth dealer.

I see your wild sexual harassment lawsuit and, after the jump, raise you this doozie…

Better call, Saul! Even Walter White and Jesse Pinkman were like, WTH?!?

* * *

Close your eyes for a sec and picture you’re out in Hawaii.

[Editor’s Note: To those of you who are already in Hawaii, if you need an in-house employment lawyer, I’m a caffeine-fueled cram session from passing the next administration of the Hawaii bar exam. Just sayin’].

Hey, no peeking! Close those eyes! Imagine that you’ve got a frozen drink (e.g., a Four-Loko Daiquiri) in your hand, the trade winds are blowing, and, somewhere in the distance, a car explodes and McGarrett is telling Dan-O to book ’em…murder one.

Sorry, forget the murder part. 

Instead, you run HR at a local hospital, helping to fill a radiological technician position. The results of a background check on one of your applicants indicate a prior conviction for possession with intent to distribute crystal methamphetamine, with a prison sentence of 37 months with a guy named Big Chicken who later went on to captain the Love Boat

So, you’re like, “Aloha sucker.” Indeed, states generally allow companies to reject applicants with felony convictions, provided that the conviction record relates to the duties and responsibilities of the position. And, because, duh, if hired, the radiological technician would work with vulnerable patient groups and have access to hella-drugs.

Or would denying employment for a felony drug conviction in this instance be “irrationally based on biases and prejudices?”

The burden is on the employer to relate the conviction to the position.

According to the Hawaii Supreme Court in this opinion, the hospital can’t reject the applicant, unless the hospital can establish a “rational relationship” between the drug conviction and the duties and responsibilities of the radiological technician position.

In this case, the Court determined that “a felony drug conviction simply has no bearing on an individual’s ability to perform the primary imaging duties of a radtech.” Plus, there were issues of material fact as to whether a radiological technician would have easy access to controlled substances.

This is not to say that the hospital won’t eventually prevail.

But it will have to do so at trial, versus summary judgment.

Hey, with all due respect to the Hawaii Supreme Court — need a law clerk? — and recognizing the EEOC guidance, which promotes an individual assessment for a background check, 10 times out of 10, I would advise the hospital to reject this candidate and risk a lawsuit. 

Who’s with me? (If you’re not, I’m sending Wo Fat after you).

  • Bob Small

    Eric- My advice to the Employer would be to perform the individual risk assessment. How long ago was the conviction-20 years? Was the applicant young when he sold the meth? Had he since worked in the field elsewhere without a problem? Can’t just say conviction/no job! If nothing else, performing the assessment might document a basis to reject or at least show good faith in rejecting the applicant.

  • Matt Smith

    I wonder how hiring a fellow such as this as a settlement with the EEOC plays out as a defense to a respondeat superior or negligent hiring claim (arising from the same employee)?

    • As the employer, I wouldn’t want to test that theory

  • The Manager

    I am with Eric. I would reject the applicant and see you in court. A “prior conviction for possession with intent to distribute crystal methamphetamine, with a prison sentence of 37 months.” is no small feat. I would specifically wonder if this person is looking for a new distribution lab at the hospital or new contacts for supplies. What better place than at a hospital?

  • 2 points
    ¯What if the convict turned his life around
    ¯does taking x¯rays allow one greater access to drugs. Pretty certain drugs are not strewn throughout hospital like chocolate in a candy store

    • Thanks for the comment.

      Yes, I agree that if the convicted felon has turned his life around and the convicted felon won’t be around drugs at a hospital, then there is little, if any, justification to not hiring the convicted felon based on a criminal record.

      BUT, how can an employer accept the convict’s word at face value? I suppose a remote conviction with a lot of positive job references in the interim would help.

      HOWEVER, I can’t imagine a situation in which a hospital tech wouldn’t eventually gain access to drugs. (Hospital folks, amirite?)

      So, do I take my chances that the stars align for the convicted felon? Or do I mitigate risk harm to patients and co-workers by hiring someone else? I go with the latter.