Prescreening job applicantsIf you recently used Uber in Florida, did you check to see if your driver was Terry Jones? If Mr. Jones’ name or his significance is not immediately apparent to you, don’t worry, Uber apparently had no clue either.

The Washington Post reported (by Faiz Siddiqui) that Uber hired Terry Jones. He is the (in)famous preacher who made worldwide headlines in 2010 when he organized “International Burn a Koran Day.” The Washington Post noted that Mr. Jones’ grandstanding “sparked death threats and global protests and earned him a No. 2 spot on an al-Qaeda hit list.” Mr. Jones’ popularity with al-Qaeda probably makes for an interesting discussion for Uber passengers. And the subject likely comes up because Mr. Jones admits he strikes up conversations about his anti-Muslim message with passengers (which must be infinitely less interesting than conversations with black-haired flamenco dancers).

One other fun fact about riding with Mr. Jones, he carries a gun, which violates Uber’s  firearms prohibition policy. Uber also has a nondiscrimination policy, among other things, prohibit discrimination against riders or drivers based on religion and national origin. Uber suspended Jones on February 4, 2017, to investigate his account and activity on the platform. It also emphasized that it conducts background checks on its driver applicants, which Mr. Jones passed. The background screenings reportedly include local, state and federal databases and motor vehicle records and go back seven years. Jones, however, was not flagged by Uber because his background check showed only two arrests that were dismissed.

Uber also emphasized that it conducts background checks on its drivers, which Mr. Jones passed. Jones, however, was not flagged in Uber’s background check because his background showed only two arrests that were dismissed.

Even so, the Washington Post noted that Mr. Jones was admittedly surprised to be approved by Uber to be a driver:

Even the Koran-burning preacher himself was surprised when he was approved to drive for Uber last month. ‘I don’t know how much research they do’ … But Uber, he said, didn’t follow up about his past …

Uber’s hiring of Terry Jones present a buffet of employment and HR discussion points, but here are two for consideration:

Guns, Rights, and Employment Restrictions

Many states, including Michigan, expressly allow employers to restrict employees from carrying a concealed pistol in the course of his or her employment.  And these restrictions – at least in Michigan – will not infringe upon an employee’s Second Amendment Rights. That was an issue decided where a drugstore employee carried a concealed weapon while at work. He later fired his gun in response to an armed robbery. See Hoven v. Walgreen Co. (2014).  The drugstore then fired the employee for violating its workplace policy. The former employee later sued, claiming Walgreen fired him in violation of public policy for exercising his right to self-defense. The district court decided against the employee, and that decision was upheld on appeal. The Court reasoned:

… though the Second Amendment of the United States Constitution and Article I, § 6 of the Michigan Constitution limit some state interference with individuals’ right to engage in self-defense and bear arms, they do not prevent interference with these rights by private actors. Therefore, the United States Constitution and the Michigan Constitution are not valid bases for Hoven’s claim.

Background Checks – A Start, but Only a Start

This is not the first time Uber’s screening policies for its drivers came under scrutiny. On February 20, 2016, in Kalamazoo, Michigan, an Uber driver shot six passengers while driving for Uber. Similar to the Jones situation, Uber argued there was nothing more it could have done to keep the shooter from working as an Uber driver because he had no criminal record.

And largely, Uber is correct; Criminal background checks are a single snapshot in time. And such snapshots are often further limited. For example, in Michigan employers generally can’t request information about employees’ and applicants’ misdemeanor arrests, detentions or dispositions that didn’t result in convictions. That appears to be what would have happened with Mr. Jones and his arrests that were dismissed.

All too often, companies rely only on “a one-and-done” background check. That is a start, but often only a start. Accordingly, we routinely discuss with our business clients the importance of having a robust and comprehensive employment law compliance program. Such a program must adequately screen job applicants in a way that complies with the patchwork of state and federal law while meeting your company’s particular needs. Does that add costs; certainly. But how much of a hit to reputation and revenue do you think Uber took and will take because of the above circumstances? Can your business afford the same?

For more information about complying with federal or Michigan employment laws or your rights under those laws, contact attorney Jason Shinn. Since 2001, he has worked with companies and individuals to address employment law issues, in addition to focusing on noncompete law and litigation.