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Is it discrimination if a facility does not hire me due to my DUI/shoplifiting records when they have RNs with similar records on staff?

Friday November 22, 2013
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Question:

Dear Nancy,

I am an LPN, and I have DUI and shoplifting convictions, and I also met with state board before I could take NCLEX. If a facility doesn’t hire me due to my convictions, but they have nurses on staff that have convictions greater or lesser than mine, is this discrimination against me?

Edith



Dear Nancy replies:

Dear Edith:

Your question is a little unclear without more detail, but a few general comments can be made. Initially, many states do have restrictions on who can be licensed when the applicant has been convicted of a crime or crimes. Some states make distinctions about the type of crime that was involved (e.g., DUI, forgery) while other states do not. It sounds as though you were licensed in your state as an LPN but are having difficulty getting hired.

Like state boards of nursing, employers also have the ability to determine whom they will hire and whom they will not, so long as the decision is not discriminatory or violates some other state or federal law. Although you indicated that the employer you are talking about has hired others with convictions "greater or lesser" than yours, you were not hired.

The reason for your not being hired is unclear and you might want to try to obtain the reason for the non-hiring from the facility itself. Were you not a good fit that had nothing to do with your past convictions? Were you not qualified for the position for which you applied (e.g., not having enough experience)? Did you need a specific type of certification for the job, and you did not have it?

It may also be that the employer may have adopted a new policy that after a certain date, no applicant with a previous criminal history would be hired by the facility. Many facility attorneys are recommending that no person convicted of any crime be hired in order to prevent any lawsuits, frivolous or otherwise, from being filed against the hospital if there is, for example, a patient injury, patient assault or patient identity theft, alleging that a facility's employee, who was a convicted criminal, was involved in the alleged incident.

You can consult with a nurse attorney or attorney in your state to see if there is some discriminatory motive for this employer not hiring you specifically when others in a similar situation have been hired. Be sure to bring with you as many numbers and facts about the hiring process that you can.

Sincerely,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.