A caution to expanding companies using criminal background information in employment decisions

Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 11/08/2011 at 11:16 AM by The Newsroom

It should be standard (and prudent) practice for a company expanding into a new state to double-check that state's laws, including the categories of protected classes in anti-discrimination laws.  Don’t forget to check state laws regarding the use of criminal background information in employment decisions.  Many states restrict the gathering and use of criminal background information in employment practices.  The increased prevalence of such laws is thanks in part to the EEOC and advocacy groups such as the Legal Action Center, a non-profit organization whose mission is, in part, to eradicate discrimination based on criminal history.  Such organizations believe, and the EEOC has concurred, that excluding individuals from employment because they have criminal conviction records may disproportionately affect persons protected under EEO laws—for example, certain racial groups such as African-Americans and Hispanics.  Accordingly, the EEOC’s position is that an employer who uses criminal background information in employment decisions should be able to show that a decision is “job related and consistent with business necessity.”  To that end, the EEOC advises employers to consider, on a case-by-case basis: “(1) the nature and gravity of the offense(s); (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.”  To be clear, federal law does not currently prohibit a private employer from using criminal background information in employment decisions (though companies need to comply with the federal Fair Credit Reporting Act).  The EEOC’s stance is that some employment practices that bar employees with criminal arrests or some types of convictions may have a disparate impact on protected categories of people and thus violate Title VII.  Because federal law does not have an outright prohibition, some states have picked up this mantle.  Thus, the bigger pitfall for expanding companies is compliance with various state laws that regulate how a company can gather criminal background information, what information it can gather, and whether such information can factor into any employment decision made about a particular individual.  The following are a few examples of how various states deal with the issue of criminal background information: Connecticut:  Connecticut prohibits an employer from asking an applicant or employee “to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased” pursuant to Connecticut law.  In Connecticut, an employment application form that contains questions concerning an applicant’s criminal history must contain “a notice, in clear and conspicuous language: (1) That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to… [Connecticut law], (2) that criminal records subject to erasure pursuant to…[Connecticut law] are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled (sic), a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and (3) that any person whose criminal records have been erased pursuant to… [Connecticut law] shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”  Further, the state of Connecticut prohibits an employer from making an adverse employment decision “solely on the basis that” the individual “had a prior arrest, criminal charge or conviction, the records of which have been erased pursuant to… [Connecticut law] or that the prospective employee had a prior conviction for which the prospective employee has received a provisional pardon pursuant to” Connecticut law. Illinois:  Illinois prohibits an employer from asking an applicant or employee about arrests.  Illinois law also prohibits an employer from making employment decisions based upon “the fact of an arrest or criminal history record information ordered expunged, sealed or impounded” under Illinois law.  However, Illinois law explicitly permits an employer to obtain or use “information which indicates that a person actually engaged in the conduct for which he or she was arrested.” Massachusetts:  Massachusetts law prohibits an employer from asking about, maintaining a record of, or making an employment decision based upon any of the following: (1) Arrests or prosecution that did not lead to a conviction; (2) A first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace; (3) Misdemeanors where the date of conviction or the end of any period of incarceration was more than five years ago, provided that there have been no subsequent convictions within those five years; (4) Any record of a court appearance which has been sealed under state law; and (5) Anything pertaining to juvenile record, including delinquency and child in need of services complaints, unless the juvenile was tried as an adult in Superior Court.  At or after an interview, an employer may ask a candidate or employee about the following: (1) Felony convictions; and (2) Misdemeanor convictions, except for (a) first convictions for the misdemeanors of drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (b) misdemeanor convictions over five years old.  Further, an employer may not request a release from an applicant or employee for the purpose of running a background check that would produce information about which the employer is prohibited from asking the applicant or employee.  Virginia:  Virginia prohibits an employer from requiring a job applicant “in any application, interview, or otherwise…to disclose information concerning any arrest or criminal charge against him that has been expunged.”   The lesson for companies is this: before expanding into a new state, practice due diligence with respect to laws regulating the gathering and use of criminal background information on applicants and employees.  Some states, like Iowa, have no such law.  Others do, and some of those treat a violation of those laws as a criminal offense, in addition to providing liability for civil litigation.  At least one state, Massachusetts, currently permits the “wronged” applicant or employee to pursue a civil lawsuit for discrimination.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

 

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