Tag Archives: criminal history

When Are Background Checks Not Allowed?

The Equal Employment Opportunity Commission (EEOC) has been quite active in challenging employers’ use of criminal background and credit history checks during hiring. There is still significant uncertainty as to the current standards and law about the checks of criminal and credit history. The lack solid guidance makes it difficult for employers to determine how to evaluate their current use of this information, as well as to understand the legal pitfalls and hurdles that the EEOC has placed in front of them.

EEOC Directives

The recent activity emanates from the EEOC’s recent directive and key priority (as per its December 2012 Strategic Enforcement Plan (SEP)) to eliminate hiring barriers. This priority includes challenges to policies and practices that exclude applicants based on criminal history or credit check. The EEOC has a keen interest in this area, as it believes that criminal/credit checks have a disparate impact on African American and Hispanic applicants. As the EEOC pursues the directive, expect the EEOC to scrutinize failure-to-hire claims where a criminal history or background check was conducted. Even if the background check was “facially neutral” and was uniformly given to all applicants, the EEOC may investigate to determine if the check had a “discriminatory effect” on certain applicant(s).

The EEOC asserts that criminal background checks must be “job-related” and “consistent with business necessity.” Employers are advised to consider: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct or completion of the sentence; and (3) the nature of the job held or sought. The EEOC stresses the need for an “individualized assessment” before excluding an applicant based on a criminal or credit record.

Local/State/Federal Laws

Employers face additional legal hurdles regarding hiring practices because of recent local and state legislative developments. These laws are commonly referred to as “ban the box” (i.e., restrictions on the use of criminal history in hiring and employment decisions). Making matters even more difficult, employers have also been subject to a surge in class action litigation under the Fair Credit Reporting Act (FCRA). The FCRA regulates the use of and gathering of criminal histories through third-party consumer reporting agencies with respect to conducting background checks on applicants or employees.

Legal Actions

In pursuit of its directive, the EEOC has filed several large-scale lawsuits against employers. We expect that the EEOC will continue to file similar lawsuits throughout 2015 and beyond. Most have been brought as failure-to-hire claims. For example, an African-American woman brought a claim alleging that she was discriminated against based on her credit history. This claim started out as a single plaintiff action, but, after the EEOC conducted its initial investigation, the EEOC dramatically expanded the scope of the initial charge, alleging that the employer was engaging in a “pattern and practice of unlawful discrimination” against: (1) African-American applicants by using poor credit history as a hiring criterion and (2) African-American, Hispanic and white male applicants by using criminal history as a hiring criterion.

Reasonable employers complain that the EEOC has placed employers in a Catch 22. Employers have to choose between ignoring criminal history and credit background, exposing themselves to potential liability for criminal and fraudulent acts committed by employees or to an EEOC lawsuit for having used this information in a discriminatory way.

Takeaway for Employers

Claims involving criminal background checks and credit checks are an EEOC priority. At this time, employers have little guidance from the courts or the EEOC as to exactly what “job-related” and “consistent with business necessity” mean and just how closely a past criminal conviction has to correspond with the duties of a particular job for an employer to legally deny employment to an applicant. Moreover, employers continue to witness expanding restrictions dealing with criminal history at the state and local level based on ban-the-box legislation, as well as with an increasing number of class action lawsuits involving background checks as required under the Fair Credit Reporting Act.

Employers are encouraged to work closely with legal counsel as to what they should and should not ask on applicants as well as how and when they can use background information they obtain. Based on this evolving area of the law, we additionally recommend that employers purchase a robust EPL policy that will defend them in the event that the EEOC or a well-skilled plaintiff’s counsel pursues a claim against them for discrimination, or for failure to hire based on criminal or credit background checks.

How to Handle New ‘Ban-the-Box’ Laws

The term, “ban the box,” refers to the question on hiring applications that asks if the applicant has a criminal record/conviction; if so, he has to check the “Yes” box. “Ban-the-box” laws are laws designed to restrict employers from including questions that ask about prior arrests or convictions on initial employment applications. The purpose behind the law is to reduce unfair barriers to the employment of people with criminal records. The ban-the-box movement requires employers to act and fast. Numerous states and cities have enacted such laws, and we expect more to follow in the near future.

Illinois’ ban-the-box equivalent, titled the Job Opportunities for Qualified Applicants Act, takes effect Jan. 1, 2015. Illinois is prohibiting private and public employers from asking about an applicant’s criminal history until after the employer selects the applicant for an interview or provides the applicant with a conditional offer of employment. Illinois’ act applies to all private-sector employers with 15 or more employees.

There are exceptions. The act does not apply to: (1) jobs that cannot be held by convicted criminals under federal or state law, (2) jobs  requiring licensing under the Emergency Medical Services System Act and (3) jobs requiring fidelity bonds. The act gives the Illinois Department of Labor (“IDOL”) the power to investigate alleged violations and authorizes IDOL to impose civil penalties up to $1,500. We expect that IDOL will start fining employers as soon as the act goes into effect.

Private-employer ban-the-box laws currently exist in California, Colorado, Connecticut, Delaware, Illinois, Maryland,   Massachusetts, Nebraska, New Jersey, New Mexico and Rhode Island. Numerous cities have passed similar laws. Pending legislation exists in Florida, Georgia, Louisiana, Michigan, New Hampshire, North Carolina, Ohio and numerous cities.

Some states’ laws prohibit employers from asking about criminal history in the initial employment application before conducting an interview, while other laws prohibit such inquiries until after the employer makes a conditional offer of employment.

Be wary, as ban-the-box laws vary in terms of what types of criminal-history questions employers may ask applicants. For example, some laws only allow employers to ask about specific convictions and explicitly prohibit employers from asking about non-conviction arrests or expunged records. Exemptions can vary as well, with exclusions for facilities or employers that provide programs, services or care to minors or vulnerable adults.

As each state’s ban-the-box law may vary, it is important for employers to reevaluate their pre-employment and hiring practices. Employers affected by ban-the-box laws that do not update their applications and pre-employment processes risk being investigated and fined on an individual and potentially class-wide basis. Employers that operate in different states need to be diligent to make sure their applications are tailored to each state and city.

The takeaway:

Have your HR department or labor counsel review your employment applications and company policies to ensure that questions regarding an applicant’s criminal history comply with applicable laws. Additionally, employers should consider providing compliance training to employees involved in interviewing and hiring to make sure they are knowledgeable about the new laws.

Laura Zaroski wrote this article with her colleagues Joseph M. Gagliardo, Lily M. Strumwasser and Laner Muchin.