Not everything you need to know about an applicant or employee always appears on a background check. Do you know how to find out if someone has a currently active or previous restraining order? If an applicant has or had a restraining order, should that place a limit on job opportunities? Learn about restraining orders and employment now.
Every employer wants to create a great place to work. Look at the mission statement of any business—perhaps even your own—and there will often be at least some attention paid to the experience employees have. No one sets out to be a bad employer, but those companies do exist. Avoiding that trap demands more than setting compensation and benefits at the right level or encouraging managers to praise and positively reinforce successes in the office. Today, it also demands a proactive approach from employers toward safety and fairness.
From preventing sexual harassment in the workplace to protecting workers from potentially violent or volatile behavior, there are many tools an employer has at their disposal. However, some potential problems exist on the fringe between civil issues and criminal behavior. The possibility that a job applicant or an employee might have an active restraining order against them (or did in the past) is one such gray area.
In most cases, a restraining order is very different from a criminal conviction regarding how it’s reported and the extent of its seriousness. Should an employer deny a job applicant based on a restraining order? How can employers find out about such orders in the first place? Understanding this edge case is crucial for developing policies to guide your company’s behavior when such scenarios inevitably occur.
A restraining order is a court order to protect an individual from someone who has engaged in a pattern of harmful or damaging behavior toward them. Courts grant restraining orders as a means of lawfully commanding someone to cease all contact with the individual in question and to stay a mandatory distance away. These provisions can include specific distances or may name particular areas where the restrained party cannot go.
Most often, a court will grant a restraining order against individuals accused of domestic violence or child abuse. Other reasons include persistent and targeted harassment, stalking, or physical or sexual assault. Restraining order laws and their enforcement vary from state to state, but in virtually all jurisdictions, restrained parties must obey the order under the penalty of criminal prosecution.
Courts may grant Temporary Restraining Orders (TROs) on an emergency basis that may not always include the immediate notification of the restrained individual. TROs often require a minimal amount of testimony due to exigent circumstances, with a new court date scheduled in the near term to finalize the order.
This is a tricky question, and the answer may vary between jurisdictions. Strictly speaking, a restraining order will usually not appear on a regular criminal background check. Because the order itself is only a civil matter with potential criminal penalties, it will not appear on a report containing only convictions.
However, employers can also use background checks that search state or county court records for matches to their applicant or employee. A restraining order would appear in these searches. Court records may display active and expired orders in the individual’s past.
In some states, individuals may request to have records of prior restraining orders expunged after a number of years and without subsequent problems. When expunged, orders will not appear in court record searches and typically only remain visible to law enforcement officers.
Ongoing monitoring is an integral part of maintaining a safe workplace. Just as an employer may wish to know as soon as someone has run into trouble with the law, you may want to take steps to see if someone has a restraining order filed against them. Because court order records are the only sure way to discover this information, employers must comply with the Fair Credit Reporting Act’s mandate of subject consent.
Ensure your employment agreements meet the requirements or seek individual consent to run additional checks as part of ongoing due diligence. Beware of singling out individuals in ways that may seem discriminatory.
If someone violates a restraining order, the police may choose to arrest and charge the individual. Violations often carry fines and potential prison terms. As criminal charges, these violations would appear on any background check that looked for such records. Employers may encounter records of past violations when they conduct a pre-employment background check.
Some states also apply the “contempt of court” charge to those breaking a restraining order. Seeing a note about a contempt conviction in an individual’s criminal record should be cause for digging deeper to learn about the origin of the charge.
How should employers interpret the impact of a restraining order on an individual’s employability? The decision is ultimately up to each business owner. A temporary order from the past that expired without a more permanent injunction could signify a personal dispute that remains in the past. However, an active order against an applicant because of potential stalking or sexual harassment may rightfully give some companies pause.
Some employers choose to accept applicants under a court order to stay away from someone on the condition that they honor the order’s terms. Others may never dig deep enough to discover the existence of one. However, there’s a vital consideration for any business: will the job duties ever provide an opportunity for the employee to violate the terms of their order? While liability may be challenging to establish in such situations, companies should endeavor to avoid such legally perilous scenarios when hiring.
The presence of a restraining order does not necessarily mean the individual has been violent, but it should raise a red flag for employers. Some will choose to terminate such employees or move on to other candidates due to the potential risks they pose—someone who violates their order could quickly end up in jail. A business may not wish to take that kind of risk. However, there are many circumstances to consider here, and providing applicants an opportunity to provide additional information may be necessary.
If an employee obtains a restraining order against another staff member at your company, temporary or otherwise, such a situation merits even more careful consideration. In the age of #MeToo, background checks can only go so far in fostering safer workplaces—employers must take a proactive role in preventing harassment and avoiding opportunities for harassment to escalate to assault. Strict internal guidelines and a procedure for fairly determining the best course of action are as much of a must-have as a means for checking state and county court records for evidence of a restraining order.
Building a safe workplace demands a thoughtful approach in many areas. Understanding how to use background checks, knowing where to look for specific information, and creating actionable policies all contribute to providing a better environment for your employees. Start learning more about everything you need to know to foster a safe workplace by exploring the up-to-date resources found in our Learning Center.
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