80% of all businesses conduct background checks as part of their pre-employment screening process, and for good reason. Background checks provide insight into the history of potential employees, helps mangers select the best and most qualified candidate for the job as well as mitigate risk. Knowing the qualifications, relevant strengths, and weaknesses about the people that you are considering hiring is really just a best business practice.
While employers and HR professionals might typically think of a background check consisting of a criminal record check, employment, or education verification, driving records are an important and sometimes overlooked source for job specific and relevant information.
If future employees are likely to be driving company vehicles, driving their own vehicle on company time, or may have to drive vehicles or equipment as part of their employment responsibilities it’s prudent to conduct driving record checks to make sure that everything is good to go.
What Do Background Checks Look Into?
Background checks conducted during the pre-employment process (usually) focus on criminal history more than anything else. Felony and Misdemeanor court records are likely going to be searched for information about an individual’s criminal history.
The kinds of details available as part of a criminal background check include, but are not limited to:
Personally, identifying information (name, date of birth, gender, etc.)
Arrest records for misdemeanor and felony offenses
Pending court case information
Conviction information for misdemeanor and felony offenses
Incarceration details
Every state in the US also maintains their own independent sex offender registry. This kind of information is almost always available for access online, free of charge, and without having to jump through a lot of hoops.
What Information Will Driving Records Include?
Driving records, on the other hand, can be a little bit harder to access unless you are requesting driving records for yourself personally. The DPPA (Driver Privacy Protection Act) is a Federal Law which requires there to be a “Permissible Purpose” that meets certain guidelines before a consumer driving record can be accessed. Employment Screening is one of the authorized reasons under the statute. Pre-Employment background checks that include requests for driving records will need to be approved in writing by the potential employee themselves,
Motor vehicle background information can include, but is not limited to:
Any potential traffic violations
Any license suspensions or revocations
The type of license that an applicant has been approved for
Any restrictions on their driving permissions
Personal identifiers – Name, DOB, Address
… As well as details regarding their driver’s license expiration date, specific endorsements they may have, a breakdown of accidents they have been a part of, as well as the status of their license.
Important Things to Remember When Pulling Driver Records
It is critically important that you obtain written authorization to run a driving record check from a potential applicant during the pre-employment process. This can be included in The Background Authorization form which is also required by the FCRA. As highlighted above, some applicants are going to need to provide written permission for their records to be pulled from the DMV. Others may even have to get their driving record themselves and furnish it to you as part of the pre-employment interview process. Other states, however, allow you to run limited driving record checks on job applicants if the job opening requires a clean driving history, an active license, or will involve them driving company vehicles.
Driving records can be extremely useful in evaluating an applicant’s competency to drive on behalf of your company. They also can demonstrate the reliability and decision-making skills of an applicant, provide verification of identity, and indicate if the applicant has had a history of issues with alcohol or drug abuse. As it’s been said a great predictor of future performance is past behavior.
What You Need to Know About Employee Drug Screening
In today’s business world, drug screening is a vital part of the employment screening process. Drug screening is something that may be legally required for certain jobs such as truck drivers or emergency workers, while may be up to the employer for other positions. Drug testing is really about ensuring a safe and productive work environment and is a best practice as it relates to risk mitigation
What is Drug Screening?
Drug screening is all tests administered to an employee or potential employee for the purpose of detecting the presence or prior use of illegal or illicit substances. This includes metabolites, the inactive metabolized forms of drugs. Such tests are often mandated for things like random employee testing, job applications, organized sports participation, police investigations, and more. The tests can vary in what they are looking for and how they are carried out.
Generally, drug tests are performed to detect the presence of the following substances:
Steroids
Phencyclidine
Barbiturates
Amphetamines, e.g. methamphetamines
Opioids
Cocaine
Marijuana
There are many different types of drug tests. This includes but is not limited to:
Hair tests
Blood tests
Saliva samples
Sweat samples
Urine samples
Why Bother with Drug Screening?
As said before, some positions may legally require drug screening. In these scenarios, the employer does not have a choice in whether they want to conduct drug screening. But for those non-mandatory situations when considering whether your organization should conduct pre-employment drug screening consider these factors:
Post-Accident Tests
If there was an accident at the workplace, drug screening can be used to determine whether drugs or alcohol were a factor in it and thus help reduce the employer’s liability. This also can let the employer know if there is a much bigger problem in the organization.
For Cause and Reasonable Suspicious Tests
If there are signs that an employee is unfit for the job and there is enough reason to suspect that the problems may be drug-related, employers can call for a drug test to determine whether this is the case for the safety of the workplace and the other employees.
Pre-Employment Tests
Employers can choose to administer drug tests prior to employing an individual if they so choose. In some jurisdictions or for certain job sectors, pre-employment tests may be mandatory under the law. Productivity, honesty, reliability, and safety can all be affected by those who use narcotics, even off the clock.
Post Treatment Tests
Employees returning to work after a rehab program may be required to undergo drug screening to judge their state of health.
Are Drug Tests Accurate?
Considering the judgments that might be made following the results of a drug test, the accuracy of those tests is particularly important. However, the accuracy can be affected by many factors.
Time between collecting the sample and testing it
Hair treatment products and similar things that can affect samples
Tampering with samples by the employee being tested
Hydration dilutes substance levels in urine
Most of all, the accuracy of drug tests is affected interpretation. A professional toxicologist sometimes known as a Medical Review Officer or MRO is required to accurately interpret positive drug test samples. This means it is vital to find a drug testing lab with a qualified professional to analyze the samples of any drug tests conducted at your place of business.
Generally, most drug tests requests can be ordered online or through text messages to the applicant. They can be conducted for an employee almost anywhere in the U.S. Results can be available in about 72 hours unless there is a positive result which needs to be reviewed by the MRO. If you are considering or have a drug screening program already, Nationwide Screening would be happy to help you set up a new program or review your existing program.
Meta Description: Drug screening is not always mandatory, but if you want to use it at your workplace, you need to know this info.
Understanding how education verification works and what it can do for your company will make your organization more effective, productive and mitigate risk. Resume fraud is quite common; between 25 and 50% of all job applicants lie on their resumes, according to several sources. Even more resumes are misleading and embellish job descriptions, duties or alter titles.
Fraudulent resumes present several legal challenges to Human Resources departments. HR departments are usually responsible for verifying that employees are qualified for a job. It is a critical piece of the hiring process helping to reduce the risk of a negligent hiring claim. Imagine hiring an engineer who does not have the proper education and training to design a bridge!
Verifying a prospect’s education assists is part of the background screening process. Although the procedure can take additional time to finish, it is mission critical in some cases that in addition to the formal degree verification that professional accreditation and licensure, has been verified and remains up to date.
If your company desires to build a successful team, then confirmation of all degrees, licensed, and/or licensure claims from the prospect should be part of the background check process. Taking these steps helps to make sure your new team members have the skills and knowledge needed to meet your companies strategic and tactical goals. Most important is how do you meet your companies needs if your workforce is not qualified to do the job. Education verification is a commonsense piece of the hiring process.
How does an education verification work?
Although an education verification can use a lot of different methods, the general procedure includes the confirmation of a prospect’s academic, certification, and/or licensure-related claims. Education verification processes can be performed for any level of education including high school, and GED equivalency exams, colleges, universities, and professional accreditations or licenses.
These background checks can include discovering info not only on whether someone finished and attended from the schools they claim, but what grades they received within specific topics of research study that may be important within a particular trade or field. Most of the time, what education verification is referring to is education and degrees from universities and colleges.
In almost all cases the college/university will require a signed release from the candidate before releasing records or an applicant’s transcript. The verification can take up to 30 days in some cases if the school is no longer in business or the records are older than 10 years. In most cases however the verification cab ne completed within 48 to 72 hours.
Legal requirements of education verification
When verifying a prospective hire’s previous education, businesses require candidates to supply their name, date of birth, and Social Security Number. Whether you are utilizing a background check service or not, it is best to offer the prospect what the Fair Credit Reporting Act (FCRA) requires and permits of businesses. Utilize a signed background authorization on a separate form from the application. Make sure the applicant is given their summary of rights under the FCRA or any other State or Local laws.
EEOC requirements of verifying education
The Equal Employment Opportunity Commission (EEOC) requires that there be no discrimination, intended or otherwise, during the review process. Employers should be consistent in how their program of conducting background checks is executed. All candidates should receive the same type of review, including methods used, turnaround time, etc. Note that local laws could also come into play based on both the locations the employer is hiring and where the candidate is located.
Summary
To ensure that your organization is conducting legally compliant education verifications and to alleviate some of the workload on your HR department consider using a qualified consumer reporting agency. For instance, Employers in Ohio can be sued for negligent hiring, retention, or supervision claims, even without the employee(s) in question being named in the suit and regardless of whether criminal charges were filed against anyone for the underlying wrongful conduct. Examples like these are a good reminder that you have a legal duty to your workforce, customers and the public to exercise reasonable caution and care when it comes to hiring, training, supervising, and retaining employees.
There is wide a range of reasons that prospects falsify information and why you should screen your applicants. These can be as simple as attempting to hide periods of unemployment or more serious so as to conceal drug abuse or a criminal history. For some, it is simply to get a leg up in today’s economy and the competitive job market.
1. Resume Fraud. Around half of all candidates embellish or outright lie on their resumes. If you can identify which applicants have misstated their credentials, experience, and abilities you can remove them from the beginning without wasting any more time in the process.
2. Limited Access to Information. Companies are reluctant to expose themselves to liability and are extremely hesitant to respond to a referral request. But, at the same time, former employers frequently hold the key to the most relevant insight about the prospect. Many employers also outsource their employment verifications to a third-party clearinghouse. Nationwide Screening Services has the expertise to navigate these employment reference challenges.
3. Expense. Numerous employers use an outside firm to perform background checks on candidates for employment and for good reason. Background checks can be complicated and time-consuming to carry out in-house. Employing a qualified employment screening firm conserves time and money– especially when small companies cannot afford to commit the necessary resources to perform these checks internal.
4. Compliance Issues. The Fair Credit Reporting Act (“FCRA”) sets standards for work screening. There is a list of compliance requirements set by the FCRA, consisting of different disclosures a company must make before, throughout, and after the background check has been performed. The FCRA also brings considerable charges for non-compliance.
5. Bad Apples Are Expensive. Hiring is one of the most important decisions an organization will make. Failure to carefully screen and pick applicants can result in employees who are (1) not certified to perform the work hired to do; (2) whose work routines are not in line with the organization’s; (3) whose mindsets and characters create disruption in the workplace (4) hired under false expectations which later develops into bad morale and low efficiency. The U.S. Department of Labor approximates that the average expense of a hiring and subsequently terminating a bad hire can equate to 30% of the staff member’s potential earnings throughout the very first year of work. However, some sources say that estimate is low and is closer to 100% for non-management workers and 150% to 200% for management.
6. Employee Theft. The U.S. Chamber of Commerce approximates that theft by workers costs American companies $20 to $40 billion each year. U.S. customers absorb this cost at the annual rate of $400 per working adult. An employee is 15 times most likely than a non-employee to steal from a company.
7. Claims of Negligent Hiring and Retention. Companies can be at risk and held liable if they fail to exercise reasonable care in the employment-selection procedure. “Reasonable care” is dependent on not simply whether the employer knew about the prospect’s predispositions but whether the company should have known. In other words, failure to screen candidates and to utilize correct care in working with them can result in legal liability.
8. Workplace Violence. Some two million American employees are victims of office violence each year. While not every occurrence of violence could be prevented with applicant screening pre-employment checks can mitigate the risk by screening out candidates with a history of violence.
9. Copyright Concerns. Intellectual property theft is a very genuine concern, costing American employers anywhere from $250 Billion to 600 Billion annually. As the workplace becomes more technology-based and employees end up being more technology-savvy, the risk of stolen trade secrets and other exclusive information will continue to escalate.
10. EEOC Violations. Of course, this is a common concern for many employers– that the person they work with will later become disenchanted with the workplace and file a suit for a perceived or real grievance. And there is an excellent reason to fret. Just ask Wal-Mart, which has been hit with several multi-million-dollar claims brought by workers over the past couple of years.
Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.
We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.
Lorenzo Pugliano CEO Lpugliano@nsshire.com
EMPLOYMENT SCREENING
Does Your Company Give Employees and Applicants a “Fair Chance”? Navigating Expanding Criminal Background Inquiry Bans Across the Country
Multiple locations have enacted various “ban-the-box” or “fair chance” laws that prohibit or limit employers’ ability to ask about or consider a person’s criminal history as part of the job application process. The Fair Chance Act in New York City is one such act, which recently was radically expanded to make it ever harder for New York City employers to rescind a promotion or terminate an employee who was convicted of a crime during employment without needing to follow a multi-step process. Philadelphia also made similar changes and Maryland and Colorado have enacted relatively new ban-the-box laws.
Waters, Trone Introduce Historic Legislation to ‘Ban the Box’ on Employment Applications Nationwide Ahead of House Vote on Police Reform
The Workforce Justice Act, which would encourage states to ‘ban the box’ on employment applications nationwide and give justice-impacted individuals a greater chance of gaining employment, has been introduced in the 116th Congress in an effort to reform a portion of the criminal justice system that affects more than 70 million people with an arrest or conviction record. According to Congressman David Trone (MD-06), justice-impacted individuals are primarily people of color and his own company saw a higher retention rate and gained more dependable employees when it banned the box and hired 500 returning citizens.
Divided Second Circuit Rejects Race Discrimination Claim Tied to Criminal Convictions Client Alerts
The full Second Circuit Court of Appeals recently denied an en banc petition to review the dismissal of a class action that involved a disparate impact claim. An earlier panel of the Second Circuit concluded that the claim in Mandala v. NTT Data, Inc., relied on nationwide criminal conviction statistics, not the conviction rates among the pool of applicants qualified for the particular jobs offered by the employer. The full Second Circuit affirmed the decision.
So Much for “9 to 5”: Employers’ Consideration of Employees’ and Applicants’ Conduct Outside of Work
In North Carolina, a private employer is free to avoid or end relationships with applicants and employees whose conduct, regardless of where or when it occurred, is objectionable to the employer. The rule has many important exceptions employers must consider that protect applicants and employees from unlawful treatment based on what they have done or said outside of work under federal law. Employers should aim to be consistent, document the decisions carefully and promptly, and implement and act in accordance with a clear, reasonable and lawful personnel policy that addresses non-workplace conduct.
FedEx Sued in New York Over Job Applicant Background Checks
A lawsuit filed by a job applicant of FedEx Corp. claims the company violated New York’s Fair Chance Act when it checked his criminal history before deciding whether to offer him a job. The company is reviewing the allegations and will de-fend the lawsuit, Franklin v. FedEx Ground Package System, Inc. The applicant is asking the court to allow him to represent a class of job applicants with criminal records who were turned down by FedEx in New York.
Illinois Tightens Restrictions on Employer Use of Criminal Background Checks
Senate Bill 1480 has been signed into law in Illinois, adding a new Section 103.1 to the Illinois Human Rights Act (IHRA) that severely restricts the ability of employers to rely on conviction records in making employment decisions. Effective immediately, the amendment prohibits use of a conviction record as the basis for an employment decision unless
1. There is a “substantial relationship” between one or more of the candidate’s prior convictions and the job at issue or
2. Employment would involve an “unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”
N.Y. Pols Propose ‘Clean Slate’ Legislation to Seal and Expunge Criminal Record
The proposal of New York’s new “Clean Slate” bill aims to create a two-step process to automatically seal and eventually expunge past convictions and make it easier for those who served time to find work and housing opportunities. Convictions would be automatically sealed one year after sentencing on the individual’s last misdemeanor conviction and three years after sentencing for felonies, as long as someone is off probation and parole, is not facing any pending criminal charges and is not on the sex offender registry. These would then not show up in most background checks for employment and housing and would be inaccessible for police department. They would, however, still be available for courts and prosecution purposes, as well as agencies statutorily mandated to fingerprint people for government-regulated jobs, licensing and clearances.
How New Jersey’s Recreational Marijuana Law Significantly Affects Work- place Drug Testing
Three marijuana reform bills were signed into law in February by New Jersey Governor Phil Murphy. The New Jersey Cannabis Regulatory, Enforcement As- sistance, and Marketplace Modernization Act (A21) legalizes and regulates can- nabis use and possession for adults who are 21 and older. The two other laws decriminalize marijuana and hashish possession (A1897) and clarify marijuana and cannabis use and possession penalties for individuals younger than 21 years old (S3454). The recreational marijuana law that voters approved by ballot initiative on Election Day 2020 has several provisions that affect employers, as does the decriminalization of marijuana law.
U.S. Office of Personal Management Provides Guidance to Federal Agencies on Consideration of Marijuana Use in Hiring Decisions
A memorandum has been issued by the Acting Director of the U.S. Office of Personnel Management (OPM) regarding “Assessing the Suitability/Fitness of Applicants or Appointees on the Basis of Marijuana Use; Maintaining a Drug-Free Workplace.”
Guidance is offered to help federal agencies deal with “increasingly encountering individuals whose knowledge, skills and abilities make them well-qualified for a position, but whose marijuana use may or may not be of concern when considering the suitability or fitness of the individual for the position,” according to Acting Director Kathleen M. McGettigan. The agency must consider several factors when determining whether an applicant is suitable or fit for a particular government agency job. Further, McGettigan said, prior marijuana use is not automatically disqualifying and agencies should exercise care before making a determination of unsuitability for criminal conduct based on marijuana possession.
Medical Marijuana and the Construction Industry: Effective Drug Testing Policy and Compliance
Mississippians voted last year to legalize medical marijuana, but the tension between federal and state law presents new challenges for contractors, especially those working in multiple states and jurisdictions. The Occupational Safety and Health Act’s general duty clause requires contractors to maintain a safe job site and work environment “free from recognized hazards that are likely to cause death or serious physical harm,” but it can be difficult to determine when an employee may be impaired and a drug test is warranted.
While some states require employee accommodation for medical use, other states that have legalized medical marijuana do not. It is important for businesses to develop a well-defined drug policy to minimize the risk of harm to persons and property and decrease the likelihood that drug testing and disciplinary action arising from marijuana intoxication will create liability for adverse employment decisions. Once developed, a contractor should administer a consistent drug testing program.
Minneapolis Becomes Latest City to Ban Use of Facial Recognition Technology
An ordinance has been passed by the Minneapolis City Council that prohibits the city from buying facial recognition technology or using any data derived from it. It also creates a process for city departments to request additional permitted uses of facial recognition programs and data through an exception process. The ordinance, however, does not include an exception for providing access control and security for employees in workplaces.
Proceeding with Biometric Caution: Illinois Courts to Decide Critical BIPA Issues
Illinois’ Biometric Information Privacy Act (BIPA) has opened the door for a whole new set of class actions, with employees asserting that employers violate the Act by utilizing timekeeping systems that require employee fingerprints, or other “biometric identifiers” or “biometric information.” Cases continue to increase into 2021 and several are worth keeping an eye on, including McDonald v. Symphony Bronzeville Park LLC (the potential complete defense case), Tims v. Black Horse Carriers, Inc. (the potential limitations defense), and Cothon v. White Castle Systems, Inc. (the potential per-scan defense case). Employers should take appropriate steps to ensure they are meeting BIPA requirements.
A bill in Florida would create new obligations for covered businesses and greatly expand consumers’ rights concerning their personal information, such as a right to notice about a business’s data collection and selling practices. House Bill 969 also would establish a private cause of action for consumers affected by a data breach involving certain personal information when reasonable safeguards were not in place to protect that information. The bill would amend the state’s Florida Information Protection Act of 2014 (FIPA), to expand the definition of “personal information” to include biometric information. In the event of a data breach involving many consumers, $100 to $750 per violation could add up and entail serious and substantial exposure.
The newly enacted Virginia Consumer Data Protection Act (VCDPA), which goes into effect on January 1, 2023, gives consumers certain rights with respect to their personal data. The VCDPA applies to all persons that conduct business in Virginia or produce products or services that are targeted to Virginia residents and that
Control or process persona data of at least 25,000 consumers during a calendar year or
Control or process personal data of at least 25,000 consumers and derive over 50 percent of gross revenue from the sale of personal data. While the VCDPA does not create a private right of action for consumers, it does provide the AG an opportunity to seek injunctive relief and impose civil penalties of up to $7,500 per violation.
E-Verify Implements Call-in Process to Resolve Citizenship Mismatch TNCs
The United States Citizenship and Immigration Services (USCIS) has announced an E-Verify policy update that provides employees who receive a Social Security Administration (SSA) Tentative Non-confirmation (TNC) with a “citizen mismatch” reason with the option to call the Department of Homeland Security (DHS) to resolve their cases. The policy is intended to reduce the significant backlog of pending social security TNCs caused the pandemic. Employers are encouraged to update their E-Verify TNC process and tutorials to include a review of the SSA Further Action Notice (FAN) letter for citizenship status mismatch language; men- tion that employees can call DHS when discussing a citizenship status mismatch TNC; and be careful to avoid asking employees too many questions about their citizenship status.
Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any ac- tions or consequences taken without the guidance of a licensed attorney or professional consultant.
Have you ever tried to run a free background check? Maybe you Googled something like “free criminal records”,” free public records,” or “free background check.” The results that you get will vary and you may end up on a site that ostensibly looks like it is giving you free records. This is partially true but eventually comes with a price.
The challenge with the idea of free background checks is that while there are many public records sites available at no cost, they might not be appropriate for employment screening purposes. These sources can provide criminal records, civil records, marriage and divorce records, property ownership, and even fishing licenses or voter registration. However, getting the information is only part of the process. If you plan on using public record information for employment purposes, you need to know what you are looking at. You still will need to adhere to the FCRA, local and state requirements even when conducting a background check on an applicant yourself.
Many web sites will masquerade as public record sites. They will allow you to do a cursory search and return several options for you to follow up on. For instance, if you enter the name, approximate age and location of an individual, the website will return several potential matches. Then they will encourage you to order a detailed report for a fee.
The reality is this is a typical ruse that private companies used to lure you in to buying a background check. The background check will most likely not comply with the Fair Credit Reporting Act an often has a disclaimer that you must agree to not use it for employment screening purposes. These databases aggregate data from multiple states, counties, cities, courts and other public record sources. There are thousands of county courts, district courts, circuit courts, municipal courts, village courts and mayors’ courts across the country. Many of these will provide data directly to database aggregators who then resell it.
The database company will then reformat the data into a nice-looking report and that can be misleading. This data is often not verified and may only have arrest information that is outdated, without a disposition of the finding or proper identifiers of the person being searched. It is critical when conducting an employment background check to make sure that you are getting information on the correct person. The Fair Credit Reporting Act requires that when using a third party CRA (consumer reporting agency) that you ensure maximum possible accuracy when utilizing data such as this for employment screening purposes.
There is really no such thing as a free background check, at least for employment purposes. Violating the FCRA or any of the state and local laws surrounding employment screening can result in costly penalties and even discrimination lawsuits. It is important to use a qualified CRA to conduct your background checks. Many CRA’s will use a nationwide database check as an additional source to add to the scope of the background check. This may uncover potential jurisdictions that might have been missed otherwise. That data, however, is still vetted by a qualified investigator which is our process at Nationwide Screening Services.
Is an arrest a conviction? What does is mean to be adjudicated guilty or not guilty? Does non-deferred adjudication mean our company can deny employment? The key to understanding these and many of the questions regarding criminal records is to understand the process involving how one goes from citizen to criminal. Understanding the criminal justice process from arrest through conviction or exoneration really is not that difficult. It is, however, useful when trying to interpret the criminal record portion of an employment background check.
Let’s use an example of Jeremy, an applicant for ACME Oven Mitts. Jeremy is excited to be applying for a job as a copywriter. He is fresh out of college and has a relatively clean record. He has a couple of parking tickets from college and was fired from his job at The Taco Hut for starting a food fight. His academic record is excellent, and he is a highly creative copywriter.
Jeremy has been made a conditional offer of employment pending a background check at ACME and decides to celebrate with his friends before he starts in 2 weeks. At the end of the evening with friends, Jeremy, who normally would use a ride share to get home, feels good about driving himself that night. Unfortunately, the police officer who saw Jeremy weaving felt differently. So, what happened to Jeremy between the time the officer stopped him to when he was due to start his job at ACME? Would ACME find out?
Here is a simple timeline with a description of the general process involved from arrest to court that Jeremy or any applicant would experience in a brush with the law. This process can differ depending on if it is a felony or misdemeanor, but for our story, let’s assume it is a misdemeanor case. Just to be clear, felonies are more serious crimes that can involve incarceration in prison and misdemeanors are less serious and may or may not include jail time.
The Criminal Justice Process
Arrest:
The police officer noticed Jeremy weaving left of center and had reasonable suspicion to affect a traffic stop.
Jeremy was noticeably slurring his words and smelled of alcohol. He also fails a field sobriety test. The officer now has probable cause to arrest Jeremy and take him into custody. Jeremy’s car is towed, and Jeremy is taken to the local police station.
After failing the breathalyzer test Jeremy is charged with OVI or DUI depending on the circumstances and amount of alcohol in his system.
Jeremy’s dad is called and pays Jeremy’s bail. They are given a court date for that Monday.
Arraignment:
The arraignment is where a defendant will enter a plea. There are three options for the defendant may enter.
No Contest – This means the defendant neither admits or denies the charges and leaves it up to the court to decide. The court usually will find the defendant guilty and sentence the defendant at that time or refer them to probation.
Guilty – The defendant denies the charges. The court will then either immediately go to sentencing or refer the defendant to a pre-sentencing investigation and schedule a date for sentencing. The bond or bail will be held, and the defendant can be released or can be required to remain incarcerated until sentencing.
Not Guilty – The defendant, in this case Jeremy, pleads not guilty. The court sets a date for trial. The defendant can remain free until trial and the bail that Jeremy’s dad paid at the police station will be held until the case is complete. If the court thought Jeremy was a risk of some type, they could also require him to remain in jail.
Pre-Trial:
1. There can be several pre-trail conferences where the defense can challenge evidence and file motions to have charges dismissed. The prosecution can also negotiate plea bargains and the two sides negotiate how the case shall proceed or if there needs to be a trial.
2. For Jeremy, the prosecutor offers a plea bargain for reckless operation of a motor vehicle with alcohol specs. This means that while Jeremy will not have a blemish on his record of a OVI or DUI, the record will still indicate alcohol was involved. Jeremy chooses to take the plea bargain. As a condition of this plea bargain, he is required to admit to the facts of the case and accept sentencing.
Sentencing:
At this stage, the defendant will appear in court and enter a plea. The court will have been informed of the plea agreement and ask the defendant if they understand the consequences of the agreement. Sentencing will be based on the recommendations of the prosecutor, the defendant’s previous record and most likely a probation investigation report.
Based on his lack of any serious record, Jeremy is offered a first offender’s diversionary program. Some states call this deferred adjudication. Deferred adjudication simply means the conviction of the offense will be set aside if the defendant completes certain requirements as recommended by the prosecutor and probation. In Jeremy’s case, it’s 6 months supervised probation, community service and alcohol awareness classes.
The outcome of this case is that Jeremy started his job at ACME Oven Mitts while on supervised probation. He completed the terms of the probation and his case was dismissed, therefore there was no conviction on record. Jeremy chose to disclose this during the background screening process and H.R. allowed him to still be hired. While the FCRA does not specifically prohibit reporting non-convictions unless they are 7 years or older, many states and cities do have specific prohibitions against using non-convictions to make hiring decisions. Be sure to know your state and local laws regarding this.
Jeremy’s case could have also been far more complex with a trial and subsequent conviction or an acquittal, which would be a finding of not guilty by the court or a jury. The prosecutor could also have chosen to not pursue the case. In some courts, the record would show as Nolle which is Latin for “nolle prosequi” which means “unwilling to prosecute.” There are many more scenarios we could have discussed with different types of charges and mitigating circumstances. We attempted to give you a quick and easy understanding of the basics here.
Therefore, it is vitally important to understand the language of the criminal justice process when using criminal background checks to evaluate applicants. There are about 10,000 lower or misdemeanor courts and approximately 3,500 felony courts in the U.S. Having an expert from Nationwide Screening Services assist in in understanding these wide-ranging and sometimes complex issues is essential to a successful employment screening program.
Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.
We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.
Philadelphia Expands Ordinance Limiting Employer Use of Credit Checks
Legislation has been signed by Philadelphia Mayor Jim Kenney that amends the Philadelphia Fair Practices Ordinance. Effective Feb. 20, 2021, the amendment expands the scope of covered employees under the Fair Practices Act to include financial institutions and law enforcement agencies operating in Philadelphia,
which were previously exempt from the ordinance’s requirements. Specifically, law enforcement agencies and financial institutions may not rely, in whole or in part, on credit-related information to take adverse employment action related to job applicants or employees, unless one of two exceptions apply. Employers should review existing policies and practices to ensure compliance with the amendment.
Illinois Set to Enact New Law Limiting Criminal Convictions in Employment Decisions
The Illinois Human Rights Act prohibits employers from considering an employee’s arrest history and now the state is taking things one step further in banning the use of criminal history in employment decisions. House Bill 1480 was passed, which provides that unless otherwise authorized by law, an employer may only consider an individual’s criminal conviction history if there is a substantial relationship between the criminal history and the position sought or held, or if the employer can show that the individual’s employment raises an unreasonable risk to property or to the safety or welfare of specific individuals or to the general public. The law, upon signing by the governor, will go into effect immediately.
Big News for Background Screening: New Appellate Ruling Says FCRA Permits Reporting Unmatched Criminal Records
The U.S. Court of Appeals for the Eleventh Circuit confirmed in December that it is not inaccurate for a consumer reporting agency (CRA) to report a criminal or sex- offender record without matching the record to a subject consumer, so long as the CRA notifies the user that the record needs further investigation before being attributed to an individual. The decision was made in Erickson v. First Advantage
Background Services Corp. Keith Erickson filed suit after he applied to coach his son’s Little League team and the required background check uncovered his father’s sex-offender record. CRA First Advantage Background Services Corporation alerted Little League, explaining that the record was a name-only match and that the organization’s “further review of the State Sex Offender website is required in order to determine if this is your subject.” Erickson claimed the CRA violated the Fair Credit Reporting Act’s (FCRA) requirement that a consumer reporting agency “follow reasonable procedures to assure maximum possible accuracy” of information included in a consumer report.
State Background Check Laws That Are Changing in 2021
Employment laws in the states prevent private employers from looking into an applicant’s criminal or credit histories, even though this is an important factor in making hiring decisions. Most states and even some cities have laws in place that allow criminal background checks. Employers in certain industries are required to conduct background checks on their applicants. Georgia, St. Louis and Washington are updating background check laws this year, but it’s important for employers across the country to check state labor law guides.
Should People with Criminal Convictions be able to Work in Health Care? A Bill in Washington’s Legislature Would Relax State Laws
A bill that is being discussed by Washington lawmakers would end the automatic disqualification of people with certain criminal convictions from working with vulnerable populations in health or home care. Sponsors of the bill say the effort could address the shortage of qualified caretakers and encourage people with convictions to take charge of their lives. Specifically, House Bill 1411 would allow people with certain crimes on their record to be eligible to apply for jobs with the Department of Social and Health Services (DSHS) at long-term care facilities or as in-home caretakers. Although the bill has support, some are urging sponsors to add more safeguards to protect the most vulnerable from abuse and neglect.
In addition to the continued increase in the number of Fair Credit Reporting Act (FCRA) case filings, 2020 also saw several key decisions handed down by federal courts. These relate to diverse issues like matching procedures of credit re- porting agencies (CRAs), Article III standing, the meaning of “maximum possible accuracy” and preemption of state credit reporting laws. Ten key FCRA decisions were made in: Williams v. First Advantage LNS Screening Solutions, Ramirez v. TransUnion LLC, Walker v. Fred Meyer, Inc., Luna v. Hansen & Adkins Auto Transport, Inc., Davis v. C&D Security Management, Inc. et al., Moran v. The
Screening Pros, LLC, et al., Domante v. Dish Networks, LLC, Consumer Data Industry Association v. Frey, Settles v. Trans Union, LLC, and Erickson v. First Advantage Background Services Corp.
Although most states have legalized marijuana for medical or recreational purposes (or both), the federal government has yet to follow suite. Employers, however, should be paying attention to the ways these new laws should be reflected in their policy decisions, asking questions like “what are the laws in my state?” “Should I be testing for marijuana?” “Can I fire an employee who tests positive?” “If an applicant tests positive for marijuana, could I still hire that person?” and “Have I addressed marijuana laws in my company’s drug-free workplace policy.?” Although laws may vary and some include guidelines for medical use, marijuana is firmly prohibited for employers regulated by the Department of Transportation (DOT). It is still legal to test for marijuana within the workplace, but,
again, employers should pay attention to state laws and regulations.
New Jersey’s Legalization of Recreational Cannabis Use Includes Critical Employee Protections, But Leaves Many Questions Unanswered
The New Jersey Legislature has passed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA),
removing marijuana as a Schedule 1 drug and legalizing personal use of cannabis for adults over the age of 21. The state is the first to explicitly protect employees who engage in off-work marijuana use from adverse employment action taken on the basis of that use, and to limit an employer’s ability to act on the basis of a positive marijuana test after employment has started. The existing New Jersey Compassionate Use Medical Marijuana Act (CUMMA) requires employers to engage in an interactive process to reasonably accommodate a qualifying employee’s use of medical cannabis off-site and off-hours. Under the new legislation, employers can no longer take adverse action against an employee solely because an individual has used, or not used, a cannabis product off duty, regardless of whether such use is medically prescribed or recreational. Although regulations and guidance are still anticipated, employers are advised to update their drug use and testing policies to account for the new protections.
Medical marijuana was legalized for use in New York in 2014 and Governor Cuomo has indicated that recreational legalization could soon follow. Although employees there are prohibited from testing job applicants for marijuana, they can test current employees. But what happens if an employee tests positive at work while having a prescription for medical marijuana? The ruling in Gordon v. Consolidated Edison, Inc., determined that a financial analyst who was terminated by Con Edison after a positive drug test could sue the utility company for disability discrimination. In the situation, the plaintiff was advised by a doctor that she would be a suitable candidate for medical marijuana to treat her irritable bowel disease. She made an appointment with the New York State Department of Health’s Medical Marijuana Program to be certified after claiming marijuana instantly relieved her symptoms. She was tested at work before becoming certified and, because of a positive test, was found to have violated the company’s drug policy and was terminated from her position. Employers in similar situations should consider the nature of the employee’s job and whether it is a safety sensitive occupation, whether there have been attendance issues or errors in the employee’s job and whether the cannabis has impacted work performance.
New York Proposes Biometric Privacy Act with Private Right of Action
Assembly Bill 27 – or Biometric Privacy Act – proposed by a bipartisan group of New York State lawmakers, would impose significant compliance requirements for companies handling biometric data. New York would become only the second state with a private right of action that includes statutory damages against entities that improperly use or retain biometric data. Specifically, the BPA will regulate entities’ use and retention of “biometric identifiers” and “biometric information.” Certain requirements would apply to private entities that engage in the collection of biometric identifiers and biometric information and also would prohibit private entities from selling, leasing, trading or otherwise profiting from an individual’s biometric data. In addition, it would put strict restrictions on private entities’ ability to disclose such information without the individual’s consent. The regulation provides a private right of action for any individual “aggrieved” by a violation of the law, and would allow such individual to recover damages of up to $1,000 for each negligent violation and $5,000 for each intentional or reckless violation, as well as attorneys’ fees and costs.
New York Proposes Biometric Privacy Act with Private Right of Action
Assembly Bill 27 – or Biometric Privacy Act – proposed by a bipartisan group of New York State lawmakers, would impose significant compliance requirements for companies handling biometric data. New York would become only the second state with a private right of action that includes statutory damages against entities that improperly use or retain biometric data. Specifically, the BPA will regulate entities’ use and retention of “biometric identifiers” and “biometric information.” Certain requirements would apply to private entities that engage in the collection of biometric identifiers and biometric information and also would prohibit private entities from selling, leasing, trading or otherwise profiting from an individual’s biometric data. In addition, it would put strict restrictions on private entities’ ability to disclose such information without the individual’s consent. The regulation pro- vides a private right of action for any individual “aggrieved” by a violation of the law, and would allow such individual to recover damages of up to $1,000 for each negligent violation and $5,000 for each intentional or reckless violation, as well as attorneys’ fees and costs.
Digital ID Verification Increasingly Targeted by AI Deep-fakes, Advisory Warns
According to Gemini Advisory, digital ID verification is attracting new threats in the form of advanced deep-fake software found on the dark web. While this is nothing new, the demand is on the rise as banks and other financial services are relying more and more on digital ID verification through selfies and videos to secure their automated services. The business has been tracking deep-fake services and have determined that detection software solutions are lagging behind these threats, only performing at 65.18 percent precision.
Virginia Set to Become Second State to Pass a Comprehensive Privacy Law
The Virginia Senate passed the Virginia Consumer Data Protection Act (CDPA) on February 3, which borrows from the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR) but differs in key respects. The key provisions of the CDPA involve applicability, exemptions, controller/ processer distinction, broad definition of personal data, inclusion of sensitive data category, individual rights, data protection assessments and enforcement.
Wait a Minute – I Thought Employee Data was Deferred from the CPPA Until 2023. What Exactly Are Employers Supposed to Do Now?
Even though the California Public Records Act (CPRA) deferred a majority of the California Consumer Privacy Act’s (CCPA) employee-related substantive requirements until January 2023, employers are still required to provide employees with a notice of collection “at or before the point at which” the collection of information occurs. The following information must be collected: a list of the categories of per- sonal information that will be collected, the business or commercial purpose for which the information is being collected, information on how to opt out of the sale of personal information and information on how to find the company’s complete privacy notice. After Jan. 1, 2023, CPRA also requires the collection of whether that information is “sold or shared” and the “length of time” that the business in- tends to retain each category of personal information.
Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant.
Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.
We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.
Ugly Attack on Congress: Employers Turn to Social Media Background Checks
Employers across the nation are taking a closer look at their employees following the January 6 attack on the Capitol building in Washington, D.C. Chicago-area data company Congensia terminated its CEO after they determined he participated in the riots and Maryland-based direct marketing company Navistar terminated one of their employees after he was photographed and his company ID was clearly displayed as he entered halls of congress. The list goes on. These individuals have a right to their civil liberties and political preferences, but not when it turns into violence. Employers are finding it more important now than ever to check out prospective candidates and employees’ online activity, but they should be mindful of legislation like the Fair Credit Reporting Act (FCRA) and Equal Employment Opportunity Commission (EEOC). Nothing can replace the traditional background check, but reviewing online activity can help mitigate risk. Read more
NYC Adds Protections for Employees with Criminal Arrests or Convictions During Employment
The New York City Council has passed amendments to the city’s Fair Chance Act, adding new protections for employees with arrests or convictions during employment. The Fair Chance Act not only affects hiring decisions, but also protects employees convicted during employment. The amendments, effective July 28, 2021, also add new protections for employees with pending arrests or accusations of criminal wrongdoing. Employers must consider the “fair chance factors” to decide whether adverse action may be taken either because there was a direct relationship between the alleged wrongdoing and the job or employment would involve an unreasonable risk to property or people’s safety. Before an employer can take any adverse employment action against a current employee based on a criminal conviction or pending arrest, several factors must be considered. Read more
LEGAL ISSUES
Negligent Hiring and Negligent Retention Claims Following a Truck Accident
When it comes to personal injury cases, the accident victim has just one chance to bring their claim – there are no second chances. In this type of law, liability is primarily based on the theory of negligence. A negligent hiring claim argues that an employer was negligent for hiring a truck driver because the employer should have known that the driver posed a risk to the public, while a negligent retention claim argues that the employer learned of the concerning information after the employee was hired. Either way, these claims argue that an employer’s negligence was, at least in part, responsible for an accident victim’s injuries, but in order to be successful, the following facts must be established: the person responsible for the accident victim’s injury was employed by the defendant employ- er; the employee was incompetent; the defendant employer knew of the employee’s incompetence; the employee’s negligence caused the accident victim’s injuries; and the employer’s negligence in hiring (or retaining) the employee was the proximate cause of the accident victim’s injuries. Read more
Maryland’s Montgomery County Amends, Expands Its ‘Ban-the-Box’ Law
An amendment has been made to Maryland’s Montgomery County ban-the-box legislation that increases restrictions on employers during the hiring process.
Effective February 19, 2021, employers with at least one employee (not limited to full-timers) may not require a job applicant to disclose (or ask a job applicant or others) whether the applicant has an arrest record or conviction record or has been accused of a crime, or conduct a criminal record check on the applicant before a conditional offer of employment, unless the employer is covered by an applicable exemption under the law. In addition, the Amendment provides that at no time can an employer require an applicant to disclose whether the applicant has been arrested, or has an arrest record, for a matter that did not result in a conviction. Other conditions also apply and, under the ordinance, employers (except the County) also are subject to civil penalties for violations of up to $1,000 for each violation. Read more
DRUG SCREENING
New Jersey’s Legalization of Recreational Cannabis Use Includes Critical Employee Protections, But Leaves Many Questions Unanswered
The New Jersey Legislature has passed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA), removing marijuana as a Schedule 1 drug and legalizing personal use of cannabis for adults over the age of 21. The state is the first to explicitly protect employees who engage in off-work marijuana use from adverse employment action taken on the basis of that use, and to limit an employer’s ability to act on the basis of a positive marijuana test after employment has started. The existing New Jersey Compassionate Use Medical Marijuana Act (CUMMA) requires employers to engage in an interactive process to reasonably accommodate a qualiying employee’s use of medical cannabis off-site and off-hours. Under the new legislation, employers can no longer take adverse action against an employee solely because an individual has used, or not used, a cannabis product off duty, regardless of whether such use is medically prescribed or recreational. Although regulations and guidance are still anticipated, employers are advised to update their drug use and testing policies to account for the new protections. Read more
Pennsylvania Medical Marijuana User May Proceed With Disability Discrimination and Retaliation Claims
An employee was terminated after testing positive for marijuana on a return-to-duty drug test. Although she had a medical marijuana card, it was expired at the time she tested positive. The card was renewed and a doctor’s note was provided. A federal court in Pennsylvania overseeing Hudnell v. Jefferson University Hospitals, Inc., held that the medical marijuana user’s claims for disability discrimination and retaliation were sufficiently alleged to survive the employer’s motion to dismiss.
The case highlights the fact that there is a fine line when it comes to reasonable requests and when it comes to medical marijuana use, employers may face disability discrimination and retaliation claims. Read more
Atlanta Mayor Suspends Pre-Employment Physical Exams, Drug Screenings, For Non-Safety Sensitive Jobs
Atlanta Mayor Keisha Lance Bottoms has issued an Executive Order suspending pre-employment physical examinations and drug screening requirements for prospective City employees in non-safety sensitive positions. The Order, which is designed to address systemic discrimination against communities of color that are disproportionately affected by underlying health conditions, also grants the Commissioner of the Department of Human Resources the authority to administratively establish requirements for pre-employment physical examinations and drug testing for safety sensitive positions. The Commissioner also may designate certain employment classifications, which affect safety and/or security as safety sensitive positions. Read more
Construction Industry’s Emerging Best Practices for Navigating the Haze of Marijuana Legalization
With marijuana medically legal in 34 states and two territories and for recreational use in 15 states, Washington, D.C., and two territories, the construction industry has been left with plenty of questions about how to maintain a workplace that is safe for all workers. Best practices have emerged in several categories, including employment policies and procedures, safety sensitive position designations, dealing with medical marijuana in the workplace, and drug testing for marijuana in the workplace. A few noteworthy ones? Treat marijuana the same as alcohol or prescription drugs when not working under a federal contract and when in a state that has legalized marijuana; designate safety sensitive positions in writing and make sure that job descriptions reflect how impairment would pose a safety risk; be aware of states who are or will be legalizing medical and recreational use of marijuana in the future; and know that drug tests are not yet a reliable source to establish whether an employee is under the influence of marijuana. Read more
BIOMETRIC ISSUES
FTC Declares Facial Recognition Surveillance Tech Dangerous, Warns Against Federal Privacy Pre-Emption
The United States Federal Trade Commission (FTC) has issued a proposed settlement with Paravision, which Law Street reports to be its first focused on misuse of the biometric technology, and taking a position against federal privacy laws pre-empting existing state legislation. According to a tweet posted by FTC Commissioner Rohit Chopra, “today’s facial recognition surveillance technologies are discriminatory and dangerous” and his statement about the complaint against Paravision says its use of photos uploaded to the Ever app to train its face biometric algorithms says lobbyists in Washington are attempting “to delete state data protection laws.” The FTC has ordered Paravision to “delete the facial recognition technologies enhanced by any improperly obtained photos,” as well as all photos and videos of Ever users who deactivated their accounts. Read more
Facial Recognition and Other Biometrics Targeted in Data Privacy Legislation, But What Will Feds Do?
A new bill, The Washington Privacy Act (SB5062), which was sent to the state’s senate, addresses geolocation data and certain biographic characteristics, as well as the use of biometrics for ad targeting. The new bill places enforcement of the privacy measures with the state attorney general and also directs the state priva- cy office and attorney general to consider requiring companies to honor online opt
-out requests submitted through web browsers. A similar ordinance was present- ed by Minneapolis police that would ban the use of facial recognition by Minneap- olis Police, but not outside law enforcement agencies operating in the city and in Utah, a senate committee unanimously approved a bill to regulate law enforce- ment use of facial recognition. There is disagreement between Republicans and Democrats on whether national data privacy legislation should pre-empt state laws, but this may not prevent the passage of new laws with the latter in control of all three legislative branches of the government. Read more
FTC Requires App Developer to Obtain Users’ Express Consent for Use of Facial Recognition
Everalbum, developer of the photo storage application Ever, has agreed to a Fed- eral Trade Commission (FTC) settlement that will require the business to 1. Ob- tain users’ express consent before using facial recognition technology on users’ photos and videos, 2. Delete or destroy all facial recognition data collected from users who have not provided consent, 3. Delete and destroy the photos and vide- os of deactivated accounts and 4. Delete models and algorithms that it developed using the photos and videos uploaded by users. Andrew Smith, Director of the FTC Bureau of Consumer Protection, stated that the FTC ensures that “companies keep their promises to customers about how they use and handle biometric data,” making it “a high priority for the FTC.” Read more
DATA PROTECTION & PRIVACY
California Privacy Rights Act Passes: Five Tips to Help Companies Prepare for California’s New, New Thing!
Although the California Privacy Rights Act (CPRA) does not repeal the California Consumer Privacy Act (CCPA), it does change and augment it in several ways. The good news is, the CPRA doesn’t take effect until January 1, 2023, and the threshold has been raised to favor small-medium businesses, time has been ex- tended for employee and business-to-business information, and the CPRA still limits its private right of action for claims related to data breaches only. Employers are advised to: reassess the organization’s data sharing and marketing strategies in light of the CPRA’s changed definitions regarding data “sales” and “sharing;” inventory and rationalize “sensitive personal information” collected by the organization to meet new standards; prepare for additional and expanded data subject rights; and prepare to welcome new policymakers and enforcers. Read more
Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant.
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EEOC guidelines that impact employment background checks
In 1975 an Eighth Circuit Court Case, Green v. Missouri Pacific Railroad, resulted in a finding by the court that it was discriminatory under Title VII for an employer to generally “follow a policy of disqualifying applicants with a conviction, other than minor traffic offenses.” The Court cited three factors known as “The Green Factors” that should be considered before deciding to disqualify an applicant based solely on the existence of a criminal conviction. The court further clarified that these factors should be related to the position in question and be consistent with a business necessity.
The Green factors are: 1. The nature and gravity of the offense or conduct 2. The time that has passed since the offense or conduct and/or completion of the sentence 3. The nature of the job held or sought
What this generally means for employers is that having a blanket policy to disqualify an applicant for any conviction other than minor traffic could create a potential Title VII violation. As a reminder, Title VII refers to the Civil Rights Act of 1964. Many components of this act give specific guidance on discrimination practices with respect to hiring practices by employers.
A key component Title VII is the concept of disparate impact. A blanket policy of denying anyone employment based solely on the existence of an arrest or conviction which may disproportionately impact those protected under Title VII. A blanket policy may also violate the law if not job related and consistent with business necessity, also known as disparate impact liability.
There is a significant amount of data that supports findings that criminal record exclusions do have a disparate impact on populations based on race and national origin. Other areas that employers may get in trouble is considering arrest records as a reason to exclude applicants from consideration. The fact of an arrest does not establish that criminal conduct has occurred. Therefore, exclusions based on an arrest, if it is not job related, is not in and of itself consistent with a business necessity. However, an employer can decide, based on the conduct underlying the arrest, if the conduct is relevant and would indicate that the applicant is unfit for the position in question. For instance, an applicant with an arrest for a sexual assault would most likely not be a good fit for a daycare worker.
The EEOC guidance states that employers can meet the job related and consistent with business necessity recommendation as follows:
1. The employer validates the criminal conduct exclusion for the position in question considering the uniform guidelines on employee selection procedures.
2. The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job: the three factors identified by the court in Green V. Missouri Pacific railroad, 549 F2d 1158 (8th Cir. 1977).
The employer’s policy then, should provide an opportunity for an individualized assessment for those people identified by the screen. The assessment should be used to determine if the policy applied is job related and consistent with the business necessity. There is interpretation of Title VII that does not require individualized assessment in all circumstances. The use of screen that does not include individualized assessments, however, is more likely to violate Title VII.
It should be noted that compliance with other state and federal laws and or regulations such as the FCRA that conflict with title VII is a defense to a charge of discrimination under Title VII, according to the EEOC. Considering the information we have provided regarding the FCRA in other articles, it’s recommended that your HR department or legal department reflect on the importance of the green factors when crafting your hiring policy.
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