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Requesting a Criminal-Background Check

In what stage of the hiring process can employers request an applicant to submit to a criminal-background check? Can they ask for it early on in the interview (to see how he or she reacts) or do they have to wait until they give the applicant an actual offer?

Monday, September 10, 2012
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Question: In what stage of the hiring process can employers request an applicant to submit to a criminal background check -- can we ask for it early on in the interview (to see how he/she reacts) or do we have to wait until we give the applicant an actual offer? Also, once we have the criminal background-check information, what pieces of it can and can't be considered in the hiring process? We are in New York.

Answer: A 2010 report by the Society for Human Resources Management found that 92 percent of employers surveyed conducted criminal background checks on at least some portion of its job candidates. See Soc. for Human Resource Management, "Background Checking: Conducting Criminal Background Checks," available at http://www.slideshare.net/shrm/background-check-criminal?from=share_email. Reasons provided by employers for conducting criminal-background checks include ensuring a safe working environment for employees, reducing legal liability for negligent hiring, and reducing or preventing theft and embezzlement in the workplace. Id.

But while ensuring the safety of employees and preventing workplace theft are certainly reasonable goals for any employer, the use of criminal-background checks during the hiring process has recently been closely examined by the Equal Employment Opportunity Commission, with a particular focus on the disproportionately negative impact the practice has on certain protected groups -- in particular, African-American and Hispanic males, who are arrested at a rate that is two to three times their proportion of the United States population. See Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions ("Guidance") at 3.

In April 2012, the EEOC issued updated guidance on the use of criminal background checks in the employment arena. This guidance serves to update the EEOC's policies on this topic, and is specifically intended to be used by employers considering the use of such checks in the employee selection and retention processes. See Guidance at 3.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of an individual's race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a). While having a criminal history is not in itself a protected classification, the EEOC has stated that, with regard to the use of criminal background checks during the hiring process, employer liability under Title VII may still exist in two general forms. First, the practice of treating applicants with comparable criminal records differently based on one of the above protected characteristics (sometimes referred to as "disparate treatment") may result in liability for the employer. Second, even a seemingly neutral policy of excluding from employment applicants of all backgrounds on the basis of a history of certain criminal conduct may implicate Title VII if the practice has a disproportionate impact on a protected class of individuals and the employer cannot demonstrate that the policy is a job-related business necessity (sometimes referred to as "disparate impact"). See Guidance at 6-9.

In New York, Article 23-A of the N.Y. Correction Law specifically prohibits discrimination against an individual on the basis of a prior criminal record unless "(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public." N.Y. Corr. Law § 752. The law further sets forth eight factors that an employer shall consider in making an employment determination on the basis of a prior criminal record. These factors are:

* New York state's public policy of encouraging the employment of individuals who have previously been convicted of a criminal offense;

* The specific duties and responsibilities involved in the position being sought;

* The bearing, if any, of the criminal offense(s) on the applicant's fitness or ability to perform the duties and responsibilities of the position;

* The amount of time that has elapsed since the occurrence of the criminal offense(s);

* The age of the individual at the time of the offense(s);

* The seriousness of the offense(s);

* Any information produced by the applicant or others on his or her behalf regarding the individual's subsequent rehabilitation and good conduct; and

* The legitimate interest of the employer in protecting property and ensuring the safety of specific individuals or the general public. Id. at § 753.

Timing of Requesting Consent to a Criminal-Background Check

Pursuant to the Fair Credit Reporting Act, before procuring a consumer report including criminal history for a job candidate, an employer must first obtain from the applicant a signed disclosure form stating that such a report is to be obtained for employment purposes. 15 U.S.C. § 1681b(b)(2)(A).

Beyond this requirement, however, some states require that an employer wait to inquire about an applicant's conviction record until after a conditional offer has been made, or at least until later in the selection process, including Hawaii (for all employees), and Connecticut and Minnesota (for public employees only). See Haw. Rev. Stat. § 378-2.5(b) ("Inquiry into and consideration of conviction records for prospective employees shall take place only after the prospective employee has received a conditional offer of employment which may be withdrawn if the prospective employee has a conviction record that bears a rational relationship to the duties and responsibilities of the position."); Conn. Gen. Stat. § 46a-80(b) ("Except for a position for which any provision of the general statutes specifically disqualifies a person from employment by the state or any of its agencies because of a prior conviction of a crime, no employer, as defined in section 5-270, shall inquire about a prospective employee's past convictions until such prospective employee has been deemed otherwise qualified for the position."); Minn. Stat. § 364.021(a) ("A public employer may not inquire into or consider the criminal record or criminal history of an applicant for public employment until the applicant has been selected for an interview by the employer."). The rationale for such a practice is that an employer is more likely to objectively assess information regarding the applicant's criminal history after having first become knowledgeable about the applicant's qualifications and experience. Guidance at 13.

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Though New York has considered implementing a law that would require an employer to make a conditional offer of employment prior to requesting a background check, the legislation has not yet been passed. See Bill No. A05330 (2009-10 Session). As such, there is presently no N.Y. state law restricting when an employee may be asked to submit to a background check. The EEOC nevertheless suggests that, "[a]s a best practice . . . employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity." Guidance at 13-14.

Elements of a Criminal Background Check that May Be Considered

As to which aspects of the information contained in a criminal background check that an employer may and may not consider in the hiring process, the Guidance makes clear that evidence of an arrest is to be treated differently than a conviction. Noting that "[a]rrests are not proof of criminal conduct" and "[m]any arrests do not result in criminal charges, or the charges are dismissed," the EEOC has stated that "an exclusion based on an arrest, in itself, is not job related and consistent with business necessity" and therefore "an arrest record standing alone may not be used to deny an employment opportunity." EEOC Guidance at 12.

However, the EEOC has further stated that an arrest "may, in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action." Id. (emphasis added). Should an employer determine that the conduct surrounding the arrest would make the individual unfit for the position in question, an employer may consider such conduct in making a hiring decision. However, this inquiry must be fact-based and specific to the conduct in question -- as noted above, the fact that a candidate was at some point arrested is, in and of itself, insufficient to justify refusing to hire the individual and may trigger liability for the employer under Title VII and related state laws.

In New York, however, it is an unlawful discriminatory practice (unless specifically required or permitted by statute) for an employer to inquire about or adversely act upon any arrest or criminal accusation not currently pending against the individual that: (1) was subsequently terminated or decided in favor of the individual; (2) resulted in a youthful offender adjudication; or (3) resulted in a sealed conviction under N.Y. Crim Proc. Law § 160.58 (for certain controlled substance or other specified offenses). See N.Y. Exec. Law § 296(16). New York City law also places similar restrictions on employer inquiries regarding certain types of arrests. See NYC Admin. Code § 8-107(11).

With regard to convictions, the EEOC has stated that "a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct," and therefore a prior conviction may be sufficient in and of itself to constitute the basis for a determination not to hire a particular individual. Guidance at 13. However, an employer should take note of any evidence of an error in the individual's record, such as a conviction that the applicant states was later expunged or a conviction reported as a felony that was subsequently downgraded to a misdemeanor. Such evidence of error must be considered by the employer in weighing the factors discussed above.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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