The Inspector General of the federal Department of Health and Human Services issued a report yesterday which reports that more than 90 percent of all nursing homes in the U.S. have at least one employee with a criminal record, and five percent of all nursing home employees have at least one conviction.   The report was based on a check of 35,000 names of nursing home employees against FBI databases.

Part of the problem is the lack of uniformity among the states regarding the types of checks that are required.  The HHS report indicates there is no federal law requiring nursing homes to check criminal histories, and that only 10 states require a check of both federal and state records.  Minnesota is one of the 33 states that requires a check of state, but not federal, records.

The most common types of conviction were for property crimes and drug offenses; most of the convictions occurred before the individual began working at the nursing home.

While nursing homes have a special duty to protect their vulnerable residents, they must also be careful about how they use the results of criminal background checks.   Another arm of the federal government, the Equal Employment Opportunity Commission,  has used a  “disparate impact” analysis to challenge as discriminatory employer policies or practices of excluding applicants or employees due to criminal convictions.  According to the EEOC, such policies are lawful only if they are “job related and consistent with business necessity” for the position in question. To meet this standard, Commission policy recommends that employers consider the following factors with respect to both the conviction and the job:

• the nature and gravity of the offense(s) for which the applicant was convicted;
• the time that has passed since the conviction and/or completion of the sentence; and
• the nature of the job held or sought.

As I wrote about the issue here, employers (including nursing homes) have to be consistent in how they decide to use background checks, and should avoid blanket policies.  Thus, where a check reveals a prior conviction, consider whether it would affect the applicant’s ability to perform the job.  For instance, a conviction for assault would be a concern for a nursing home position; a conviction for jay walking probably would not. Employers should also consider how old the conviction is, and evidence of rehabilitation, before making employment decisions.