Every year, employers review and possibly change their background check policies and practices to take into account the box ban and other laws affecting background checks. Over the past year, we have seen some major developments, which are highlighted in this alert.
Illinois changed Illinois human rights law to make it more difficult for employers to reject applicants or fire employees based on their conviction history. Specifically, employers can only take adverse employment action against an individual on the basis of a conviction if the individual has a “significant connection” to the job in question or presents an “unreasonable risk” for the property or safety of others. In making this decision, Illinois employers should consider: (1) the length of time since the conviction; (2) the number of convictions in the individual’s file; (3) the nature and seriousness of the conviction and its relation to the safety and security of others; (4) the facts or circumstances surrounding the conviction; (5) the age of the person at the time of the conviction; and (6) evidence of rehabilitation efforts.
If, after performing this assessment, the employer makes a preliminary decision that the individual’s conviction record is disqualifying, the employer must provide a written notice that contains: (1) the disqualifying conviction (s) and reasoning for the employer for disqualification; (2) a copy of the conviction history report, if applicable; and (3) an explanation of the claimant’s or employee’s right to respond before the employer’s decision becomes final, including the right to submit evidence challenging the accuracy of the conviction record (s) or evidence mitigation, such as rehabilitation. The employer must wait five working days before making a final decision to allow the individual to respond to the notice and submit information for the employer’s review.
If the employer decides to go ahead with the adverse action, they must provide the individual with a final written notice, which must (again) identify the conviction at issue, explain the basis for the decision (even s ‘it has not changed from the preliminary opinion), inform of any existing domestic proceedings to request a review, and advise the individual of the right to file a discrimination charge with the Human Rights Department of Illinois.
On June 16, 2021, Louisiana passed a “Fair Chance” law, which prohibits employers (those with 20 or more employees in the state) from considering a criminal record or a charge that has not resulted in a conviction if the information has been “received”. during a background check. With respect to the review of convictions, the law enacts the Equal Employment Opportunity Commission (EEOC) framework as a requirement for determining whether a conviction is employment-related, as outlined in its 2012 Enforcement Guide. on the inclusion of arrests and conviction files in employment decisions under Title VII of the Civil Rights Act. Applicants also now have the right to make a written request for “any background check information used during the hiring process.” Thus, if an applicant makes such a request, the employer must provide a copy of the report and any other information that the employer took into account in making their decision (e.g. online research, public archives research, etc. .).
New York City
New York City’s amendments and guidelines for its Fair Chance Act (FCA) have received the most attention from employers. Among other things, employers may not consider non-convictions, must follow a specific process when reviewing a pending case, and may only reject an applicant for failing to disclose their criminal history if the misrepresentation of the candidate was “intentional”.
More importantly, the New York City Human Rights Commission now considers a conditional job offer to be one that can be revoked solely on the basis of the results of a criminal background check (including including sex offender registry and driving records), a medical examination as permitted by the Americans with Disabilities Act, or “[o]other information that the employer could not reasonably have known before making the conditional offer…. The Commission explains in its guidance that to comply with the FCA, employers must use a two-step background check process.
- First, the employer must obtain and assess all non-criminal information before making a conditional offer (p.).
- Once this is completed and the conditional offer extended, the employer may ask applicants to disclose their criminal history themselves and request a criminal background check, which includes motor vehicle records.
If an employer cannot perform a two-step background check, they must establish a system to internally separate criminal background information to ensure that it is only accessible to decision makers. after a conditional offer was made. Employers who choose to go through such a process will have the burden of proving that criminal information was inaccessible to decision makers until after a conditional offer. This can create a challenge for employers.
An employer seeking to disqualify a post-conditional offer from a candidate based on non-criminal information will need to prove that: (1) it could not reasonably have known of the information prior to the conditional offer; and (2) regardless of the results of the criminal background check, the employer would not have made the offer had it known about the non-criminal information before the offer was extended. Any non-criminal information could reasonably have been known prior to a conditional offer if the information existed before the conditional offer and could have been obtained by the employer exercising due diligence.
The Commission recommends that employers omit to mention a criminal background check when seeking consent from an applicant for a background check prior to a conditional offer, and instead use terms such as “consumer report”. Or “consumer investigation report” rather than “background check” in their disclosure and authorization forms, if used prior to a conditional offer. Of course, employers still need to comply with the Fair Credit Reporting Act (FCRA), so they may consider using two sets of forms to inform applicants of the scope of the background check during this two-step process. .
In early 2021, Philadelphia expanded its existing box ban ordinance, which already required employers, among others, to postpone criminal background investigations until the end of a conditional offer, not to take into account. counts convictions of more than seven years, conduct an individualized assessment of any potentially disabling conviction and provide certain opinions if action is taken on the basis of a criminal record. Now the ordinance makes it clear that it covers independent contractors, concert workers and current employees. In addition, the order expressly allows employers to inquire about an employee’s pending criminal charge if it is employment-related, the employer’s written policy details which pending charges must be reported, and the employer concludes “reasonably” that the continued employment of the employee would present an “unacceptable risk to the operation of the company or to colleagues or customers” and that the dismissal of the employee is ” obliged by the necessity of the company ”. The ordinance also broadened the remedies available to injured parties.
Additionally, in 2021, Philadelphia changed its ordinance regarding the employer’s use of credit history information. As of 2016, it has been illegal for an employer to use credit information about an employee or candidate for employment purposes, with limited exceptions. Under the amended ordinance, however, law enforcement agencies and financial institutions are no longer automatically exempt (as they were in the previous version of the ordinance). Instead, they can use the credit history information for employment purposes if any of the other exemptions in the ordinance apply, including if the information “must be obtained in accordance with the law.” ‘state or federal’ or if the job has a bonding requirement under city, state or federal law.
Remember for employers
All employers should consider a privileged review of their background check practices by an experienced lawyer. Beyond the laws discussed above, some jurisdictions do not allow employers to inquire about criminal history on a job application or prior to a conditional offer, including ordering a criminal history report from ‘a background check provider, subject to narrow exceptions. In addition, several jurisdictions also have their own laws regarding “workplace relationship” requirements for an employer’s use of criminal history information, including California, New York, and Wisconsin, among others. And several have enhanced notification requirements that go beyond what the FCRA requires.
In addition, employers continue to be the target of hypertechnical class actions by the FCRA over the forms and process they use to obtain background checks. fair credit reporting laws and substantive employment laws.