LEGAL CONTEXT OF CRIMINAL BACKGROUND CHECKS

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LEGAL CONTEXTOFCRIMINAL BACKGROUND CHECKS
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Competing Interests

• Employers view prevent hiring
• Dangerous/dishonest employee
• Employees view do not discriminate
• Give me a second chance

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Negligent Hiring

• Employers do not want to hire those with a
  violent past for fear of injury to
  customers/co-workers
• Murder
• Assault
• Rape
• Armed Robbery

4
Discrimination

• Criminal Background Check screening tool
• Must not have an adverse impact on protected
  groups
• Conventional wisdom says minorities have a higher
  arrest/conviction rate adverse impact (may not
  be true in a given area or for a given crime)
• Can overcome adverse impact if employer can show
  business necessity or no adverse impact

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Business Necessity

• Does the existence of criminal conduct create a
  risk the employer does not want to take?
• Can the employer achieve the same results by
  means that do not have an adverse affect?

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EEOC - Guidelines

• Nature of offense
• Length of time since conviction/release
• Nature of job sought/held
• Convictions EEOC Notice No. 915
• Arrests EEOC Notice No. 915-061

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EL v. SEPTA, 479 F. 3d 232 (3rd Cir. 2007)

• Put background screening to the same validation
  standards of other employment screening
• Must prove that past conviction creates a risk
  beyond that of those without the conviction
• Employer had a matrix of crimes and
  disqualification
• Could not justify matrix no scientific study
• Had experts at trial to justify standards and
  plaintiff did not challenge these experts
• Plaintiff lost

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What Is A Conviction?

• FCRA does not define
• FDIC any plea of guilty
• Infractions/violations/offenses
• e.g. New York minor crimes classified as an
  offense

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A Rose Is A Rose

• The federal statue relating to crimes could not
  be negated by New York re-characterizing some
  crimes as non-crimes

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Now You Have The Record What Do You Do With It?

• Arrest can be used to make employment decisions
• Silvera v. Orange County School Board, 244 F.3d
  1253 (11th Cir. 2001)
• Considered plaintiffs past arrests - not
  convictions to demostrate that plaintiff was
  violent that justified termination
• FCRA Sec. 605
• Arrests 7 years
• Convictions indefinite

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State Limitations

• 11 States have their own limits with the
  following salary caps
• State Years Salary
• Cal 7 All
• Hawaii 10 All
• Kansas 7 20,000
• Maryland 7
  20,000
• Massachusetts 7
  20,000
• Montana 7
  All
• Nevada 7
  All
• New Hampshire 7
  20,000
• New Mexico 7
  Credit Only
• New York 7
  25,000
• Washington 7
  20,000
• Dropped 75,000 in 2001 therefore may be
  preempted Sec. 625 (b)(1)(E)
• Two States have limitations that are preempted by
  the FCRA
• Texas and Colorado

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State Limitations On Employer Consideration

• Georgia Youthful offender
• Massachusetts Old misdemeanors, convictions for
  a few
• California Arrest w/o convictions
• Deferred sentence
• Marijuana 1 oz.

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Which State Law Applies?

• A California resident is applying to work for a
  Massachusetts based company. He will work in
  their Oklahoma Plant.

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Reporting Scenarios

• Deferred sentence/adjudication withheld entry
  plea of guilty, 1-5 years until court hears
  dismissal
• Between guilty plea and dismissal
• - Report plea of guilty
• - Disposition sentence deferred until ____
• Time has passed without dismissal
• Automatic dismissal report dismissed
• If need motion to dismiss and no dismissal then
  report as guilty plea and deferred

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Arrest With No Disposition

• Arrest with no charges
• - consider them gone after 1 year
• Charge without disposition
• -check docket is there a reason for no
  disposition?
• - motions filed
• - bond forfeited
• - warrant issued
• Molestation charged dismissed per deferred
  sentence conviction for failure to register as
  a sex offender can be reported.
• Convicted on 9/1/98 probation 5 years is this
  still current (7 years) No.
• FTC does not include probation to extend
  reporting parole does extend here case ended
  on 9/1/98 could be reported to 9/1/05
• Convicted 8/1/99, 10 years, suspended on
  probation for 10 years with restrictions. Can
  you report this today?
• FTC says too old I question their position
  employer needs to know of restriction. The case
  is not over.

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Identifiers

• DOB not discriminatory to ask
• Sheehan v. Daily Racing Form, Inc., 104 F.3d 940
  (7th Cir. 1997)
• Race employer must collect for applicant flow
  analysis
• No valid reason not to collect and provide to CRA
• Tear off or separate sheet