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Employment Law In Focus – August 2016

With apologies to Shakespeare, “To hire or not to hire – is that the question?”  One of the latest employment law debates around the country involves the practice of checking the criminal records of applicants for employment.  Driven by the legitimate desire to hire only the best qualified and “safest” employees, many companies ask in their employment applications for individuals to voluntarily disclose any prior convictions.  Upon any disclosure, most companies ask additional questions of the applicant regarding their prior legal problems before making a hiring decision – but not always.  And it’s this latter potential, in which applicants with disclosed prior convictions are almost automatically disqualified from being interviewed and/or offered a job, that has spawned what’s usually called the “Ban the Box” movement..

In summary, “Ban the Box” seeks to redress the following situation, whose legal foundation is firmly grounded in Title VII of the Civil Rights Act of 1964.  First, Title VII prohibits discrimination on the basis of sex, race, color, religion and national origin in every aspect of employment, including screening practices and hiring. And even if an employer doesn’t intend to discriminate, a general policy or practice whose effect disproportionately screens out applicants of a particular race, ethnicity, or other protected trait may in certain circumstances constitute illegal discrimination.  In the context of interviewing and hiring applicants for employment, because arrest and conviction rates are statistically higher for certain minority groups, employers with blanket policies of excluding all applicants with a criminal record might be engaging in race or national origin discrimination as defined by our laws due to the policy’s “disparate impact” on those groups.

“Ban the Box” is a relatively narrow attempt to help avoid that type of potential discrimination while also achieving a larger socio-economic goal of providing more job opportunities for applicants with a criminal background.  In summary, it advocates removing the “box” on employment applications that ask if the applicant has a criminal record.  Its basic function is to enable ex-offenders to display their qualifications in the hiring process before being asked about their criminal records.  Its primary goal is to increase the applicant’s chance of being hired based on qualifications alone, rather than being potentially disqualified from the start due to a prior criminal record.

Significantly, “Ban the Box” does not stand for the principle of prohibiting employers from asking applicants about their criminal histories.  Rather, it simply delays this part of the background check until later in the hiring process and/or limits the scope of that inquiry – which hopefully provides these applicants with an ability to “prove” themselves as the best qualified before a single factor like a prior conviction comes back to haunt them yet again.  And that haunting is especially evident when it results in a virtually never-ending cycle of having paid their debt to society but being inordinately limited in their ability to find meaningful employment and improve their lives.  Various states and municipalities have enacted Ban the Box laws, many with their own unique requirements or restrictions.  Penalties for non-compliance vary by jurisdiction but may include the ability to sue for actual damages, attorneys’ fees, equitable relief (such as stopping employment application questions about criminal histories), punitive damages, and administrative penalties.

Regardless of its well-meaning intent, Ban the Box also has its critics.  And as stated above that criticism is usually based on an employer’s desire to only hire the most qualified – and “safest” – employees for their workforce.  To help achieve that goal, many employers prefer asking about prior convictions at the start of the application process – not that it would automatically exclude someone who answers “yes”, but rather that it would initiate the conversation about an important hiring qualification at an early stage before too much additional time, effort and costs of the hiring process are expended.  In fact, many if not most employers who do ask about criminal convictions in their initial application also qualify that inquiry by not automatically excluding the applicant.  Instead, it opens the door to further questions about the nature and type of conviction, and especially whether there is any reasonable “nexus” (connection) with the job position being filled.

For example, an applicant with a conviction for fraud or worthless checks will likely not be hired for an accounting or bookkeeper position, but very well might be hired for another position that has nothing to do with the company’s finances.   The more difficult decision, however, concerns those applicants with a more “violent” criminal history – as convictions for assault, battery, rape, child molestation, armed robbery, breaking & entering, and similar more egregious crimes at least arguably increase an employer’s chance of having workplace problems with that individual.  And with those problems come at least the potential of increased liability for employers – an issue more fully addressed below.

Potential Liabilities for Employers

Separate from the potential for discrimination liability or liability for violating a “Ban the Box” statute (which at least so far does not exist in North Carolina), employers can be caught in a “Catch-22” of various other legal claims if someone with a criminal conviction history is hired and then commits an act of violence at work.  That’s especially true when that person has an egregious criminal past, whether due to the nature or frequency of prior crimes – and in particular if those crimes were violent.  This type of potential employer liability is usually based on negligence theories like negligent hiring, negligent supervision and negligent retention, each of which rely in major part upon the employer’s prior knowledge that the employee had some background flaw that should have kept him or her from being hired or retained in the first place.  But they can also include claims for assault, battery, negligent or intentional infliction of emotional distress, and a myriad of other potential claims depending on the circumstances, not to mention the potential of increased workers’ compensation claims for anyone who might be injured at work due to an act of violence.

So therein lies the employer’s dilemma.  Specifically, within the bounds of the law and tempered by common business sense and each company’s own perspective on these issues, how do you balance a desire for the “best” workforce you can hire with a larger goal of truly providing equal employment opportunity for all and doing what may be “best” for the community at large?  There’s no easy answer, but the good news is that there is at least some guidance for navigating these difficult waters – and while certainly not perfect, and in certain ways not even practical, perhaps the best roadmap is the 2012 Enforcement Guidance and other legal positions taken by the U.S. Equal Employment Opportunity Commission (“EEOC”).

EEOC Position and Various State and Local Laws

The EEOC enforces Title VII and numerous other federal employment laws.  It is also a strong supporter of and advocate for Ban the Box legislation and related efforts.  In accordance with that position, the EEOC takes a dim view of employer policies that automatically bar applicants from employment based upon their criminal histories, in particular due to the “disparate impact” reasons mentioned above.  Moreover, according to the EEOC, a violation of Title VII may occur when an employer treats criminal history information differently for different applicants or employees, with the primary discrimination claim being based on race or national origin.

Despite that position, it is important to recognize that the EEOC still sees a place for employers to ask about criminal histories and conduct criminal background checks – but it should be done in the “right” way that helps avoid unlawful discrimination in the process.  Towards that end, the EEOC advocates certain general rules that should be followed.  In particular, employers should not inquire into arrests or consider any information known about an applicant’s arrest history.  Further, employers should not have a “blanket” policy of not hiring anyone simply due to their having been criminally convicted, even if the crime was a felony.  In fact, the EEOC’s Guidance also recommends that any employer policy about criminal history inquiries should be in writing, explicitly state that any employment decision based on a prior conviction will be made on a case-by-case basis after considering all relevant factors, and then provides enumerated areas of consideration for helping make that decision – all of which are also grounded in an overall goal of helping to ensure that the decision is job related and consistent with legitimate “business necessity”.

The EEOC has identified two primary ways in which employers can show that criminal background information being considered is job related and consistent with business necessity:

* The employer can validate the exclusion criterion in light of the EEOC’s Uniform Guidelines on Employee Selection Procedures, apparently by proving statistically that past criminal conduct is related to future work performance or behaviors; or

* The employer can develop a “targeted screen” whereby they consider at a minimum the nature of the conviction, the time elapsed since the conviction and the nature of the job. The employer must also provide an opportunity for an individual assessment for those people identified by the screen to determine if the policy as applied is job related and consistent with business necessity.

The individualized assessment is described by the EEOC as a process in which the applicant has an opportunity to show that the exclusion should not apply to him or her.  Evidence the employer should consider includes at least the following:  (1) the facts and circumstances surrounding the conviction, (2) the number of convictions, (3) the age of the applicant at the time of the conviction/release from incarceration, (4) evidence of related incidents, if any, (5) rehabilitation, (6) employment or character references, (7) fitness for the position, and (8) bonding.  The employer should give the applicant an opportunity to explain.  If, after a reasonable period of time, the applicant fails to provide additional information, the employer may make a decision without any additional evidence.

As stated above, the EEOC takes the position that employers should eliminate any policies that automatically bar applicants from employment based upon their arrest and/or conviction histories.  Instead, according to the EEOC, employers should develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct, which would require the employer to: (1) identify essential job requirements and the actual circumstances under which the jobs are performed; (2) determine the specific offenses that may demonstrate unfitness for performing such jobs; (3) determine the duration of exclusions for criminal conduct based on all available evidence; (4) record the justification for the policy and procedures; and (5) keep a record of consultations and research considered in crafting the policy and procedures.  In addition to following those steps, the EEOC concludes that employers should limit criminal history inquiries to only obtaining those records for which exclusion would be job related for the position in question and consistent with business necessity.

Whether in response to Ban the Box or otherwise, many states and local government entities have already adopted specific laws or ordinances limiting the ability to ask about criminal histories in job applications, or using criminal background information in the hiring process, or requiring specific steps before using such information.  Some of the latest statistics show that numerous states across the country, and more than 100 cities and counties, have taken that step to help ensure that applicants with criminal histories are at least initially considered based on job qualifications alone rather a past conviction.  (See, e.g., Ban the Box information and statistics provided by the National Employment Law Project at http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/).  As a result, employers with multi-state operations should especially be careful to review the state and local laws for all locations in which they are hiring.

Best Practices

Regardless of an employer’s position on Ban the Box, it must be said that the “best” legal practice is of course to implement all or most of the EEOC’s recommended steps in its 2012 Enforcement Guidance on using criminal histories in employment decisions.  But even if those steps are not completely followed, employers should at least create a written policy on the use of criminal records, narrowly tailor job applications to the greatest extent possible, and if a question about prior criminal convictions is asked in the application then qualify that question with how the information does not necessarily disqualify the applicant from consideration.  In addition, if your jurisdiction has other requirements that must be followed – such as not inquiring about “expunged” criminal records (as in North Carolina) – then those qualifiers should also be mentioned.

Employers who ask about criminal histories should also provide an applicant the opportunity to explain any conviction, then make an individualized assessment regarding the nature and timing of the offense within the context of the job position at issue, thoroughly documenting the process.  Further, employers should apply the same standards to everyone, regardless of their race, national origin, sex, religion, disability, age, sexual preference or gender identity, or any other protected status.  For example, an employer that does not reject applicants of one race or ethnicity with certain criminal records for a particular job position should not reject applicants of other races or ethnicities for that position who have the same or similar criminal records.

Finally, employers should also remember that criminal history checks are also generally subject to Fair Credit Reporting Act (“FCRA”) requirements.  In summary, the FCRA prevents employers from obtaining private background information without separate written authorization and requires that employers provide a written summary of rights and other notices to applicant or employees when using that background information as the basis for adverse action.  The FCRA applies to employers when they hire an outside third party, known as a “consumer reporting agency,” to perform criminal histories, credit and other background checks on employees and prospective employees.  On the other hand, if an employer conducts background checks on its own without a consumer reporting agency’s assistance (for example, the employer calls prior employers of an applicant directly), the FCRA is usually not implicated.

Conclusion

What will happen to the “Ban the Box” movement remains to be seen.  But one thing is certain:  it continues to gain momentum across the country and will continue to challenge the entire business community with its call for doing the “right” thing in our hiring practices – which very well may be the “best” thing as well.  Although there are always unfortunate exceptions, it is also quite true that some of the best employees a company can have are those who have been given a “second chance” after paying their debt for mistakes previously made.

This article was written by Ken Carlson of Constangy, Brooks, Smith & Prophete, LLP

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