A background screening company has just provided you, the employer, with a background check report on an applicant that reveals a criminal conviction. Now what? Somewhat predictably, you will need to carefully assess the criminal history information included in the background check report to decide whether to hire the applicant. What is more, you will need to ensure the applicant is properly informed of any potential negative employment decisions and, if appropriate, any final negative employment decisions that are based on the background check report. That seems fairly straightforward. However, the exact manner in which the above is accomplished is of great importance. Failure to aptly consider criminal history in employment decisions and notify an applicant of where they stand during the entire assessment process could result in unwanted litigation as a result of noncompliance.
How does an employer begin to properly assess criminal history information?
There is no federal law that explicitly defines how an employer must assess criminal history information to determine whether to exclude an individual from a job position. Nevertheless, the Equal Employment Opportunity Commission (EEOC) issued guidance, entitled “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act” in 2012. Although the guidance is not law or regulation, courts regularly look to EEOC guidance when making their decisions.
The guidance makes it clear that an employer’s use of criminal history information can result in Title VII discrimination if certain measures are not put into place. According to the guidance, the employer must show that an exclusion based on criminal history information is job-related for the position and consistent with business necessity. To do so, the employer must effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position. This is accomplished through the implementation of a targeted screen considering at least (1) the nature and gravity of the offense, (2) the time that has passed since the offense and/or completion of the sentence, and (3) the nature of the job held or sought, and followed by an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity. The individualized assessment consists of a notice to the individual that they have been screened out because of a criminal conviction and an opportunity for the individual to demonstrate that the exclusion should not be applied due to their particular circumstances. The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate. Other relevant individualized evidence includes, for example:
- The facts or circumstances surrounding the offense or conduct;
- The number of offenses for which the individual was convicted;
- Older age at the time of conviction, or release from prison;
- Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense or conduct;
- Rehabilitation efforts, e.g., education/training;
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state, or local bonding program.
Afterward, the employer must consider whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job-related and consistent with business necessity.
What is an employer’s adverse action notification requirements under federal law?
The federal Fair Credit Reporting Act (FCRA) mandates certain obligations in the event an employer considers an adverse action based on the background check report. For clarity, an adverse action means the denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.
When an employer intends to rely on a background check report, in any capacity, to make an adverse employment decision, the employer must first provide the applicant with a “pre-adverse action notice,” which must include a copy of the background check report and the document, “A Summary of Your Rights Under the Fair Credit Reporting Act.” The purpose of a pre-adverse action notice is to allow the applicant to review the background check report and contact the background screening company should they believe any item of information is inaccurate or incomplete. Consequently, the employer must wait a reasonable amount of time after providing the applicant with the pre-adverse action notice before making an adverse employment decision. This is commonly referred to as the “waiting period.” The FCRA does not explicitly state how long an employer must give an applicant to review the background check report before ultimately making an adverse employment decision, but the Federal Trade Commission’s Advisory Opinion to Weisberg opined that five business days is a reasonable amount of time.
Assuming the applicant does not inform the background screening company that any item of information is inaccurate or incomplete and the employer ultimately makes an employment decision that adversely affects the applicant, the employer must send the applicant a “final adverse action notice.” The final adverse action notice must inform the applicant of the following:
- Notice of the adverse action based on the background screening report;
- Name, address, and telephone number of the background screening company, such as InCheck;
- A statement that the background screening company did not make the decision to take the adverse action and is unable to provide the candidate the specific reasons why the adverse action was taken;
- Notice of the candidate’s right to obtain a free file disclosure of a background screening report within 60 days; and
- Notice of the candidate’s right to dispute with the background screening company the accuracy or completeness of any information in a background screening report.
Are there any other assessment and notification requirements for which employers need to be aware?
Yes! Many state and local jurisdictions have passed legislation that also impacts how private employers need to assess legally usable criminal background check information and/or properly notify applicants during specific stages of the assessment process.
The below jurisdictions explicitly require private employers to follow specific conditions when considering criminal background check information, similar to the EEOC’s Guidance, and/or impose requirements in addition to that of the FCRA as it relates to the adverse action process based on criminal history information.
State Jurisdictions: California; Georgia; Hawaii; Illinois; Louisiana; Maryland; Massachusetts; New Jersey; New York; Pennsylvania; Washington; Washington, D.C.; Wisconsin
Local Jurisdictions: Atlanta, GA; Austin, TX; Chicago, IL; Columbia, MO; Gainesville, FL; Grand Rapids, MI; Kansas City, MO; Los Angeles, CA; Los Angeles County, CA New York City, NY; Philadelphia, PA; Portland, OR; Prince George County, MD; San Francisco, CA; Seattle, WA; St. Louis, MO
How can InCheck help?
InCheck has created the guide, “Criminal Background Check Assessment & Adverse Action Notification Process Whitepaper,” which includes excerpts from the above jurisdictions. The whitepaper, like this blog, can be reviewed to better understand the compliance obligations employers face during the assessment of criminal history information. Even so, InCheck strongly recommends that employers work closely with their legal counsel to further examine all applicable laws to ensure their background screening program is compliant.