Ban the box update

NOTE: This post was originally published in August 2016 and has been updated with more recent data.

The Ban the Box movement was initially reviewed in this blog in the 2013 post, Should the box be banned? The movement continues to grow and this blog has updated the progress.
Since the last update in September 2018 there hasn’t been much in the way of new legislation. However, some states are refining their Ban the Box laws. Massachusetts passed a Ban the Box law in 2010, which included private employers when most states have laws only covering State job applications. 

In October 2018, a Massachusetts criminal justice reform bill went into effect that included further Ban the Box regulation. The new regulations include disclosure of misdemeanor convictions for three years instead of five. Employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

While past private employer Ban the Box bills have failed in Colorado (Law already cover State employers), the 2019 legislature may be amenable to idea.

What is “Ban the Box”?

For the last several years there has been a movement to remove from employment applications the “box” that asks the question, “Have you ever been convicted of a crime” or any inquiry about criminal history. What has become known as  “ban the box”, the campaign feels that one’s criminal history should not be a consideration of employment at the time an application is submitted, rather, at a later time during the interview process. It is felt that asking this question on the application reduces the chances of those with criminal records to be employed. Employers should meet applicants first, get to know them, give a chance to explain themselves and then get to the criminal history. The Equal Employment Opportunity Commission (EEOC) has updated its policies, issuing guidelines in 2012 suggesting that employers wait until after a personal interview before making inquiries about criminal history.

In January 2014, there were fifty-six cities that had “banned the box”. As of September 2018, that list included over 150 cities and counties, and 32 States (Eleven of which have laws that include private employers)

CURRENT STATE LIST

Arizona

California*

Colorado 

Connecticut *

Delaware 

Georgia 

Hawaii*

Illinois*

Indiana

Kansas

Kentucky

Louisiana 

Maryland 

Massachusetts*

Minnesota*

Missouri 

Nebraska 

Nevada

New Jersey*

New Mexico 

New York 

Ohio 

Oklahoma 

Oregon*

Pennsylvania

Rhode Island* 

Tennessee 

Utah

Vermont*

Virginia 

Washington*

Wisconsin

*States with laws that also cover private employers

The Society for Human Resource Management posted a good article that breaks down laws State by State, which can be viewed at Ban the Box Laws by State and Municipality .

Maryland Ban the Box

            Maryland’s law took effect October 1, 2013, and applies only to State of Maryland employment applications. State government cannot ask about criminal record or criminal history of an applicant until the applicant has been provided an opportunity for an interview. Exempt from the law are positions in the Department of Public Safety and Correctional Services. Baltimore passed a similar law in 2014, restricting employers with 10 or more workers from asking a candidate about criminal records until after a conditional employment offer is made.

In 2017, Louisiana became the first state to enact a ban the box law for state institutions. Maryland passed a law in 2017, but the Governor vetoed it. In January 2018, the Maryland legislature overrode the Governor’s veto, reinstating the law.

As the laws regarding criminal history continue to evolve the legislative season is a good time to review your interview and questions and job application content.

Click here for other posts relating to Ban the Box.

Employee implants

In 1985, Dr. Hannis Stoddard invented an injectable microchip based pet recovery system. In the last decade Hollywood picked up on the theme by injecting humans with microchips. Who knows what goes on in the secret world of the military and espionage? This week a Wisconsin company made the news when it announced that employees had been offered microchip implants to use as a method for building access and food purchases. This is something that’s happening and is going to change the workplace.

What are Microchips?

Microchips are rice-sized radio frequency identification devices that use passive Near Field Communication (NFC) technology to transmit data when held a few inches away from readers. Passive meaning that the microchips hold data that the reader recognizes but the devices cannot receive data. The devices were popularized in the 1990’s for recovery use in pets, being injected under the skin in the neck/shoulder area.

The technology was tested for office uses in 1998 when British scientist Kevin Warwick experimented with microchip implants to open doors, and switch on lights. The technology has been experimented with since that time for commercial and medical uses with little success or popularity.

In January 2015, the Swedish company Epicenter began offering voluntary implants to its employees. The chips are used as a replacement for magnetic key cards to access secure areas and for use as payment in company stores. For human use in this manner, the microchip is inserted in the fleshy area between the thumb and forefinger. Three Square Market, a Wisconsin technology company, have partnered with the same Swedish company who conducted the inserts for Epicenter and plans on using the technology in the same manner.  This is the first time the technology has been used in a broad setting tagging workers.

Microchipping issues

All new technology brings concerns of privacy and security, which begets legal debate and regulation. In this instance the technology also raises religious concerns.

According the National Conference of State Legislatures, nineteen states have some law referencing microchipping. Five of those states (California, Missouri, North Dakota, Oklahoma, Wisconsin) have specific laws prohibiting the mandatory implantation of microchips. Some states currently use tag/bracelet based RFID technology to track prisoners. After some recent high profile escapes there has been legislative debate to use tracking implants on prisoners.

Mark Gasson is a British scientist who is a proponent of enhancing humans through the use of implanted technology. In 2009, Gasson inserted a microchip into his own hand and went on to demonstrate that not only could the device be hacked but could receive a computer virus. This and other experiments raise security concerns. Implanted microchips have the potential to store personal and health data. As with any data storage device, the implants would have to be protected against hacking.

Wearable technology is not new to the workplace. Watch like and other devices are used to track employees throughout their day. The November 2016 post, Employee monitoring, gave an overview of wearable tech in the workplace. The concerns raised were legality of employer access to health data as well as monitoring outside of the workplace. With implanted devices the concerns are the same except in this instance the employee cannot be separated from the monitoring device.

Another issue is of a religious concern. Christians believing that this type of technology is another step closer to the writings in the book of Revelation. The EEOC has ruled in favor of Christian employees in past cases where a company has implemented fingerprint scanning.

The few people I've spoken to have said no way. The Swedish company, Epicenter, has parties celebrating an employee's decision to be implanted. The Wisconsin company, Three Square Market, already has fifty employees agreeing to the implants.

Employers considering this or any type of employee tracking devices should do considerable research. Definitely work with an attorney to develop policies and updates to employee handbooks.

Technology is ever changing our world. Whenever any new piece of technology or approach to employee monitoring is introduced there will be legal issues. How the devices are deployed, what they are used for, how data is collected and stored, and what the data is used for will all present legal challenges.

George Orwell is probably very happy.

Read other posts regarding employee monitoring and privacy. Please feel free to share and like.

Employee monitoring November 2016

Social media checks July 2016

Workplace monitoring May 2016

Frequently Asked Questions

During my time providing investigative services to businesses the same questions regarding pre employment screenings and background checks were repeatedly asked. To address those questions, we developed a list of frequently asked questions, which are shared below. I hope this will help answer questions you may have and guide you through the hiring process.

·      What are an employer’s legal obligations?

• Fair Credit Reporting Act (FCRA). As of October 1, 1997 the FCRA requires that all employers who request background checks for pre employment screening purposes have a written consent from the applicant. 
• Civil Rights Act of 1964, Title VII. Employers cannot reject or fire qualified individuals who have criminal records when the criminal history has no bearing on the individual’s fitness or ability to perform the job.
•  Equal Employment Opportunity Commission (EEOC. The EEOC is clear in its position on employers’ use of criminal background checks for employee hiring and retention: “Using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”
• National Labor Relations Act (NLRA) was enacted in 1935. The Act allows for the National labor Relations Board to enforce laws that give employees the right to act together for improved pay and working conditions, even if they are not part of a union. 

·      What is a “National” record check?

• We were always asked to conduct national criminal record checks. This request is difficult to explain because most people’s perception of the criminal justice system is marred by television. Simply put, there is no “national” database that houses criminal records. Records of arrests and adjudications are kept at the local courthouses and county jurisdictions. Conducting a non-law enforcement national background check would be better said as a “nationwide” check. To obtain a thorough picture of a person’s criminal past, all levels of government entities maintaining criminal records should be searched. Read our post "National" record checks, which further explains the subject.

If there is no national database, how do you get the most detailed information?

• Look for companies that search both public and commercial databases within the Federal, State, and County jurisdictions. Analyzing the information to ensure the utmost accuracy for your screenings.

·      What is “Ban the box”?

• Ban the box is national grassroots movement to remove the question, “Have you ever been convicted of a crime” from employment applications. Many State and local jurisdictions have passed laws removing the question from government employment applications.

·      What is Bright line hiring?

•  “Bright line” is a clearly defined rule or standard, generally used in law, composed of objective factors, which leaves little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application. 
• A Bright line hiring example would be to not hire someone with a criminal record. Bright line hiring practices are dangerous for any business, as you may have violated the Civil Rights Act of 1964 or EEOC guidelines.

·      Can expunged records be located?

• Sometimes. The legal term “expunged” has different definitions in different states. Some allow for the records to be sealed and treat the case as it never happened. Some change the conviction to “dismissed”, but the other details of the case are the same. In Maryland, it means to remove from public inspection. 
• Although records are expunged, they are filed somewhere.  Third party vendors purchase data from government entities before records are expunged. They then resell that data. Although records get expunged, they remain active through third party vendors.

·      Why should I do pre employment checks?

• Avoid the expense of making a bad hire. Bad hires can cost as much as three times the salary of the job in question
•  Reduce liability: Putting current employees at risk by placing a violent person in the workplace.
• Find those with a propensity for violence. Workplace violence has been found to make up 18% of all crime.
•  Reduce of workplace accidents
•  Reduce resume puffing. One-third of resumes have some degree of puffery
•  Aid the applicant. During the process other names associated with the applicants’ social security number are regularly discovered. This information may help the applicant thwart identity theft.

·      Why can’t I just do checks myself?

• You can and many do. The Internet is a very powerful tool. The questions are: Do you have time? Do you know where to look? Do you know how to decipher the information you do find? Are you sure you are looking at the correct person?

See our blog archive and topic categories for more on this topic.

How well do you know someone? March 2017

Social Media Checks July 2016

FCRwhat? March 2015

Just checking local Internet records not enough December 2014

Convicted? Never convicted. October 2014

Have you ever been convicted of a crime? February 2014

What is the price of not doing a background check July 2013

"National" record checks April 2013

Ban the box

Languages spoken?

As a customer of almost any business there is a high probability that you will interact with someone who speaks in accented English or speaks little English. As an employer, there is also a high probability that your job applicants will speak in accented English. Customers should to be patient and polite; Employers need to be cautious of not violating the law.

A colleague had a difficult time placing an in person order with a store employee who spoke accented English. They asked me if it was illegal for employers not to hire people who had difficulty clearly communicating with customers. The short answer is, yes. Any employer that discriminates against an applicant for their accent or attempts to establish an English only policy without establishing a business necessity would more than likely be in violation of Title VII of the Civil Rights Act of 1964. Employers cannot use English only policies to discriminate against employees or prospective employees due to their accent or lack of English skills.

A lot of small business owners that I’ve encountered do not have documented hiring policies. They have a basic understanding of hiring laws, but still hire who they “like” with little documentation. Establishing a hiring component such as business necessity can be laborious for small businesses.

The Equal Employment opportunity Commission explains language discrimination as follows.

Discrimination Based on Accent

Treating employees differently because they have a foreign accent is lawful only if accent materially interferes with being able to do the job.

• Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English.
• Jobs that may require effective oral communication in English include teaching, customer service, and telemarketing to English speaking clients.
•   If a person has an accent but it is able to communicate effectively and be understood in English, he or she cannot be discriminated against.

Speak English Only Rules

The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity. 

•  A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
•  An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
•   Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
•  Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.

The complete EEOC pamphlet on immigrant rights can be found at
EEOC: Immigrants' Employment Rights Under FederalAnti-Discrimination Laws

State laws may also apply to these hiring situations. Employers should always consult their employment law attorney before establishing any hiring requirements.

See the blog archive for other posts about hiring.

Hiring in the Millennial Age May 2017

Health History Discrimination May 2016

FCRAwhat? March 2015

Have you ever been convicted of a crime? February 2014

Health history discrimination

What an employer asks on employment applications regarding criminal history and how it is used, has long been scrutinized by the Equal Employment Opportunity Commission (EEOC). In recent years when an employer asks about criminal history has been at issue (Should the box be banned, February 4, 2013). Employers are also getting caught on health history questions, although the EEOC has been monitoring that form of discrimination for over twenty years.

EEOC and ADA

The Civil Rights Act of 1964, Title VII, made it illegal to discriminate based on race, color, religion, sex, or national origin. The EEOC was created in 1965 to enforce the Civil Rights Act but had to authority. In 1972, Congress gave the EEOC litigation enforcement authority. The American with Disabilities Act was passed in 1990 and the EEOC was given enforcement authority over Title I of the Act, which includes the employment discrimination provisions. The ADA places restrictions on employers regarding asking job applicants to answer medical questions.

EEOC v. Grisham Farm Products, Inc.

In a recent case the EEOC, on March 22, 2016, filed suit in the United States District Court against Grisham Farm Products, Inc. alleging that its employment application violated the ADA. (Equal Employment Opportunity Commission v. Grisham Farm Products, Inc. 16-cv-03105)

In the case, an applicant applied for a warehouse position at Grisham. The Grisham job application contained forty-three “yes or no” health related questions. The questions were similar to what would be seen on an initial doctor visit. The Grisham application inquired whether in the past ten years the applicant has had allergies, arthritis, bladder infections, eating disorders, gallstones, sexually transmitted diseases, etc. The application also inquired about prior hospitalizations, HIV infection, treatment for alcoholism, and whether the applicant consulted a doctor, chiropractor, therapist, or other health care provider in the past two years.

The application’s Health History section stated in large letters, “All questions must be answered before we can process your application”. The applicant did not answer all of the questions and telephoned Grisham Farm. A company representative said that if the health history section was not fully completed, it would not be accepted.

The EEOC claims that the applicant believed he did not have to reveal his medical history to any potential employer. The case is still in litigation.

Review your hiring process

Employers should be frequently reviewing their hiring process. They also need to follow EEOC decisions as these decisions occur frequently and affect the hiring process. As with questions regarding criminal history, there are parameters as to what health questions can be asked and when they can be asked. The EEOC is clear that pre-employment health inquiries can be made only after a conditional offer has been made, if the inquiries are made to all applicants for that job category, and the inquiries are job related and consistent with a business necessity.



May 9, 2016-The EEOC released it's latest guidance on leave as a reasonable accommodation under the ADA. Employer-Provided Leave and the Americans with Disabilities Act

What is your social media policy?

            

Hiring and maintaining quality employees is a difficult process, in addition there is the challenge of keeping up with the ever-changing landscape of employment issues. The last few years employers have had to navigate through several major adjustments, some changes are ongoing. For example, the EEOC has published new guidelines on the use of criminal background checks. The “Ban the box” movement is rapidly spreading through State and local governments. If you are not familiar with the term “Ban the box”, it is the phrase used to describe the movement to have the question, “Have you ever been convicted of a crime”, removed from employment applications. (Have you ever been convicted of a crime? February 3, 2013) Maryland passed such a law, which took effect October 2013. In addition to rule changes, Federal authorities are monitoring employer’s actions for FCRA violations and National Labor Relations Act violations.

           

Researching social media

As technology changes it affects the way we do business. Not only in our daily commerce but also in the hiring process. Employees have always talked around the water cooler and outside of work in the privacy of their cliques, outside the earshot of company officials. With social media, employees have a broader base to which their complaints are heard and also are more open to discovery. Bosses are taking to the Internet to see what their employees are doing on social media. Human resource professionals are also using social media as part of their screening process. Hiring surveys have found that nearly 60% of interviewed HR professionals use social media as part of the applicant’s screening process. This is almost double the percentage from surveys conducted in 2012. In 2013, Federal labor bodies began hearing social media related cases and applying existing laws to the new medium for worker dissent-social media.

            The Internet has made it very easy to check on employees, but whether you are hiring or checking on an employee you may want to resist the urge. If you are researching job applicants and decide to do some Internet research, you may learn details about the applicant that you don’t know from the application, this could affect your hiring decision. If you learn something such as race, sexual orientation, illness, or pregnancy, and use that knowledge in your hiring decision, you may be in violation of the Civil Rights Act of 1964 and have trouble with the EEOC. 

            If you’re searching to see what employees are up to around the virtual water cooler and learn some disparaging information you may be enticed to act. Some employers have retaliated against employees for social media postings, which brought the cases before the National Labor Relations Board (NLRB). As the result, the NLRB has ruled, in most cases, for the employee.

           

Federal law

Title 7 of the Civil Rights Act of 1964 prohibits employers from refusing to hire any individual, or otherwise to discriminate against any individual, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin

The National Labor Relations Act, Section 7 states, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. Section 8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7”.

When using social media searches, employers can easily let information they learn infiltrate the decision process. Even if they claim they haven’t used information illegally, it would be difficult to prove otherwise.

            The NLRB ruled in 2013 that employees could use social media to…well…complain. As you read above, the NLRA protects employees’ rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. When an employee is complaining on social media about the boss, or conditions, or hours, they have that right. Additionally, the NLRB has ruled that employees can use confidential company information, company logos, or photographs of company property. The basis of the rulings are the employee’s Section 7 rights to act in concert and share company information regarding their working conditions in such ways as leaflets, picketing, etc. in an electronic medium.

One of the first rulings for employees came on April 27, 2013. The NLRB, Administrative Law judge, ruled in favor of three employees fired as the result of postings on Facebook about their employer and work conditions. The Board ruled that the employees were engaging in a protected concerted activity. As a result, the employer must offer full reinstatement to the fired employees, make the employees whole for any loss of earnings or benefits, and remove any mention of the firings from the employee’s records. Case 20-CA-035511, 359 NLRB No. 96

            In our blog post, Enforcing company policy May 8, 2015, a NLRB decision is highlighted in which a company claimed violation of obscenity rules as the reason for firing an employee for a Facebook rant.

Enacting policy

Companies have responded to the growing phenomenon that is social media by enacting policies that control what their employees can and/or cannot post. The NLRB has ruled that companies cannot have policies that restrict the use of social media by employees, nor can acts of retaliation be taken against employees as a result of social media postings. Furthermore, employers cannot ask employees for passwords or retaliate against employees for failure to provide passwords.

            Social media laws are also being enacted at the State level. In 2012, Maryland enacted the country’s first such law. The User Name and Password Privacy Protection and Exclusions law prohibits an employer from requesting or requiring an employee or applicant to disclose access information to their personal social media accounts.

So the question is- what is your social media policy? Is there one in place and does it address management’s use as well as workers? HR professionals can help draft your policy; always have any new policy or policy changes reviewed by an attorney.

Websites like Policy tool for Social Media can assist in drafting a policy. The site takes the user through a series of questions that results in a completed policy.

A good interview

The interview is a major part of the hiring process. In addition to being encouraged by the EEOC, it gives the employer a chance to get a feel for the applicant’s character and a chance for the applicant to be forthright about their resume and anything in their past that may pertain to the job for which they are applying.  If there is a discrepancy, than a chance to elaborate.

We have clients that are not surprised by the findings of screenings, because they have conducted thorough interviews and learned of past indiscretions prior to conducting a screening. Sometimes though the applicant downplays, tries to hides, or refutes an incident. That is when a more detailed examination of the facts needs to takes place. 

Criminal record findings are based on the personal data supplied by the client. The results are not verification of the record. Once the person is identified with the record the original court records should be retrieved for actual verification.  Life is not as television would have us believe. There is not a single repository for criminal records. Records are not always found in the employers home State. To locate any and all records, queries should be made Federal, State, and even local courts.  ("National" record checks)

Here are some examples of how criminal records work with a good interview. Why are these special? It’s what they didn’t and did tell their prospective employers that makes the point. All were interviewed prior to the request for a pre employment screening. Some were forthright and explained past indiscretions. Others rolled the dice. 

• Fully aware and consenting to a pre employment screening, the applicant admitted to being arrested for possession of marijuana during college, a lesser offense. When the results returned multiple counts of more serious offenses, the applicant continued to deny the convictions. State (Not Maryland) and county record searches revealed more serious charges, but experience tells us that sometimes the charges read more serious than the actual event. Further research of local court records revealed that the charges were accurate. The applicant was arrested and convicted of selling drugs to an undercover detective. A little more than mere possession.
• The applicant said nothing of past criminal activity. Searches revealed multiple felony drug arrests and convictions. However, FCRA guidelines prohibit the use of criminal records more than seven years old in consumer reports. The deal breaker on this one was not the criminal record but truthfulness and character. The applicant arrived at the interview with an apparent injury saying that he was currently on medical leave, expected to return. During employment verification it was learned from the employer that the applicant was fired weeks before for skimming money.
• Maryland and out of State searches revealed no records for the applicant. However, our routine searches of the Federal court system revealed past arrests. Again, FCRA regulations prohibited the reporting of the records. When the report was provided the client said that the applicant had admitted to the past federal charges during the interview process. The client wasn’t worried about the long ago indiscretions, but was more impressed with the applicant’s honesty and character.

The Equal Employment Opportunity Commission suggests that the report be presented to the applicant and the applicant allowed a chance to address the findings of the report. Before a decision of hiring is made. Allowing the applicant to talk about themselves can yield a wealth of information about the prospective employee. Allowing them a chance to honestly represent their past or defend the findings can yield much more.

Mazzella Investigative Solutions-Services

FCRwhat?

Most of our small business clients have never conducted pre employment screenings. As the economy has tightened the need to hire the best suited candidate has become more of a focus (The cost of a bad hire can be upwards of $50,000). So smaller employers have sought to conduct pre employment screenings to give them more information about their candidates. They know the hiring basics (formal employment applications, conduct interviews, etc) but rarely have they delved into an applicants’ character and past. When they do, most have fallen into stereotypical hiring process traps that put them in jeopardy of a court visit. Last year alone there were millions of dollars awarded in class action suits for Fair Credit Report Act (FCRA) violations.

Some common mistakes employers make are:

• Failure to have a disclosure of the screening separate from the application
• Burying the disclosure of the screening with application questions
• Failure to provide proper pre-adverse action and/or adverse action notices
• Failure to include a copy of the report or a Summary of Rights with the pre-adverse notice

Small business owners don’t have the benefits of human resource departments. They have either just started a business or have been in business for many years. Whichever the case, the Fair Credit Reporting Act and guidelines set by the Equal Employment Opportunity Commission are news to them. They are not intentionally trying to violate the rights of potential employees; they just don’t know the rules.

Fair Credit Reporting Act 

The Fair Credit Reporting Act  (FCRA) was passed by Congress in 1996 and went into effect September 30, 1997. As the Act is titled, it was initially passed to regulate the collection and use of credit information by credit bureaus. The goal being to provide consumers a way to access information contained in their credit bureau files. Due to the ever growing amount of incorrect information contained in these files, the act also provided a mechanism in which consumers could dispute the records. Basically, it is designed to protect the privacy of consumers and to guarantee that the information supplied by reporting agencies is as accurate as possible.

The FCRA has been amended several times since being passed. With negligent hiring and privacy issue complaints increasing since the passage of the Act, the FCRA was amended to apply to all consumer type reports. Too include the pre employment screenings completed during the hiring process. A consumer report (the information collected during the pre employment screening}, contains information about the applicant’s personal and credit characteristics, character, general reputation, and lifestyle.

The FCRA also provides procedures for obtaining consumer information and how it is to be used and disseminated during a pre employment screening. The Federal Trade Commission enforces all aspects of the FCRA.

Equal Employment Opportunity Commission

The FCRA regulates how consumer report data is collected and used. Part of that data are criminal records. The Equal Employment Opportunity Commission (EEOC) ensures that the information found in the criminal records collected during the pre employment screening is not used to discriminate against the prospective employee. This is where the employers’ fall victim-How they react to and use the criminal record data.

The Civil Rights Act of 1964, Title VII, states that employers cannot reject or fire qualified individuals who have criminal records when the criminal history has no bearing on the individual’s fitness or ability to perform the job. The EEOC is quite clear in its position on employers’ use of criminal background checks for employee hiring and retention: “Using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.” In making a decision, the employer must consider the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred.

The FCRA states that the applicant has a right to view the information contained in the consumer report and have a chance to dispute the record.  Following this lead, the EEOC encourages the employer to personally interview the applicant and allow them the chance to refute and/or explain the criminal record.

It’s all about being fair. The employer wants to make the right decision to avoid later costs and problems. The applicant is seeking employment. As with the decisions made in other areas of the business, the employer needs to make informed decisions by reviewing and understanding all of the information gathered during the screening process. This review process should include a personal interview so the employer has the chance to hear the rest of the story.

Scroll through our Information and Resources page regarding the FCRA, EEOC, and for helpful information.