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Is Your Criminal Screening Process Compliant?

“An employer’s reluctance in hiring an applicant with a criminal history is understandable and sensible. Employers have an obligation to ensure a safe workplace, can be fined for failing to enact safeguards against workplace violence, and face liability for negligent hiring and retention of employees who commit violence in the workplace. Furthermore, a job applicant’s honesty and judgment are relevant factors to consider in assessing an applicant’s suitability for a job. For these reasons, employers frequently feel the need to inquire about an applicant’s criminal conviction history and use criminal background checks when making hiring decisions. However, a recent increase in laws banning, or significantly limiting, an employer’s ability to inquire about an applicant’s criminal history, requires that all employers examine their current criminal background check policies and practices to ensure compliance with applicable laws.

In May 2012, the United States’ administrative agency, the Equal Employment Opportunity Commission (EEOC), issued new guidance explaining how employers may violate Title VII of the Civil Rights Act of 1964 by screening out and rejecting job applicants that have a criminal history. The guidance set forth statistical evidence in support of a heightened scrutiny of criminal background checks. Specifically, according to the EEOC, nearly one in four job applicants has some kind of criminal past; therefore, an employer’s inflexible position on criminal backgrounds denies employment to a significant portion of the population and deprives these individuals of the opportunity to be productive members of society. The EEOC also presented evidence that some criminal background screens may have a disparate impact on certain segments of the population, such as black and Latino men. Therefore, the EEOC issued guidelines recommending that employers not ask about convictions on job applications and that, if and when they do 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. These guidelines also strongly recommend that employers conduct individualized assessments, using the nature of the crime, the time elapsed, and the nature of the job, in order to screen out only those applicants whose criminal conduct bears a demonstrably tight connection to the position in question. The Agency made clear that it will pursue litigation against employers that have a rigid no felony conviction rule and/or fail to conduct an individualized assessment when screening job applicants with a criminal history.

Based on similar logic, nine states (Colorado, California, Connecticut, Illinois, Massachusetts, New Mexico, Minnesota, and Hawaii) have enacted so-called “ban the box” laws that limit an employer’s ability to conduct background checks regarding an applicant’s criminal history. Cities that have also banned the box include: Atlantic City, NJ; Atlanta, GA; Austin, TX; Baltimore, MD; Boston, MA; Chicago, IL; Cincinnati, OH; Cleveland, OH; Detroit, MI; Memphis, TN; Minneapolis, MN; New York, NY; Newark, NJ; Oakland, CA; Philadelphia, PA; Pittsburgh, PA; San Francisco, CA; Seattle, WA; St. Paul, MN; and Washington, DC. These laws, which sometimes apply only to government employers and sometimes to all employers, vary with regard to when and what kind of criminal background information may be gathered or considered in the hiring process. For example, Minnesota, Hawaii, and Massachusetts have broad “ban the box” statutes, prohibiting both public and private employers from inquiring into an applicant’s criminal history until the interview process (Minnesota and Massachusetts) or until a conditional offer of employment is made (Hawaii). By comparison, in California, employers cannot ask about arrests that did not result in a conviction. And, while California employers may inquire about some convictions, they may not inquire about marijuana-related convictions that are more than two years old. Several states, including New Jersey and Rhode Island, recently introduced “ban the box” legislation. Accordingly, employers can expect more activity on this front in the future.

Given this trend, employers should review their current criminal background check policies and consider the following guidelines:

  • Refrain from inquiring into an applicant’s arrest record and/or criminal history on an initial application;
  • Develop a tailored written policy for screening criminal records for job applicants and train all managers and hiring officials on the same;
  • Comply with the requirements of the federal Fair Credit Reporting Act (FCRA) and similar state laws;
  • Keep information confidential about applicants’ (and employees’) criminal records;
  • Carefully determine which positions truly require a background check;
  • Determine what specific offenses may make a candidate unsuitable for a particular position;
  • Consider only convictions related to the position in question or recent in time to the hiring process; and
  • Provide applicants with notice of potentially disqualifying convictions and allow them the opportunity to provide information about the offense, including evidence of rehabilitation.


Notwithstanding the above guidelines, employers still must perform their due diligence and remain cognizant of their obligations to ensure a safe workplace for all employees. However, to avoid running afoul of the EEOC guidelines and rapidly developing state and local laws, employers should not use criminal histories as a per se bar to employment.


If you have questions about your practices and procedures in relation to developments in this area of the law, please consult counsel for assistance.”


Originally posted on Sheppard, Mullin, Richter & Hampton LLP’s Labor & Employment Law Blog.  For more information, please visit:


“Study shows that companies have rejected 1 in 10 people between ages 16 and 34 because of something the person shared on social media.”

“Little did Ashley Payne know that the festive photo of her holding both a pint of beer and a glass of red wine would lead to her losing her high school teaching job. The 24-year-old educator posted the image to her Facebook profile, and after a parent complained, school officials told Payne she’d have to choose between resigning and suspension, according to IOL News. She resigned. If those same school officials were hiring and found a candidate with a similar photo shared on the social Web, it’s most likely that person wouldn’t even get an interview.

According to a new report, turning down young job candidates because of what they post on social media has become commonplace. The report, by On Device Research, states that 1 in 10 people between ages 16 and 34 have been turned down for a new job because of photos or comments on Facebook, Twitter, Pinterest, and other social networking sites.

“If getting a job wasn’t hard enough in this tough economic climate, young people are getting rejected from employment because of their social media profiles and they are not concerned about it,” On Device Research’s marketing manager Sarah Quinn said in a statement.

Ten percent of young people said they knew they were rejected from a job because of their social media profiles, yet 66 percent of young people still don’t seem to care that these profiles may affect their career prospects. The majority of young people cater their social media presence to friends rather than potential employers, according to On Device Research. Quinn says that better education on how social media can affect employment is needed to ensure young people aren’t making it even harder to excel in their careers.

Several U.S. states have created laws to protect employees from being fired because of what they post on social media. In January, six states officially made it illegal for employers to ask their workers for passwords to their social media accounts. It’s unclear how many employers have demanded access to workers’ online accounts, but some cases have surfaced publicly and inspired lively debate over the past year. In one instance last year, a teacher’s aide in Michigan was suspended after refusing to provide access to her Facebook account following complaints over a picture she posted.

As for Payne, even though she ultimately resigned, she since has sued the school to get her job back or receive monetary damages, according to IOL News.”


Originally posted on by by Dara Kerr.  For more information, please visit


On October 1, 2013, Nevada will be the tenth state to prohibit the use of credit information for employment purposes.

This new law was introduced by Senator Parks on February 18, 2013.  This bill was intended to “prohibit employers from conditioning employment on a consumer credit report or other credit information.”

Nevada Governor Brian Sandoval signed the bill into law on May 25, 2013 and it goes into effect on October 1, 2013.


The only exceptions under this new law are the following:

  • “The employer is required or authorized, pursuant to state or federal law, to use a consumer credit report or other credit information for that purpose;
  • The employer reasonably believes that the employee or prospective employee has engaged in specific activity which may constitute a violation of state or federal law; or
  • The information contained in the consumer credit report or other credit information is “job related” or reasonably related to the position for which the employee or prospective employee is being evaluated for employment, promotion, reassignment or retention as an employee.”


Job Relatedness is defined as a position which involves:

(a) responsibility for financial assets or employment with a financial institution;

(b) access to confidential information;

(c) managerial or supervisory responsibility;

(d) direct exercise of law enforcement authority;

(e) responsibility for or access to another person’s financial information; and

(f) employment with a licensed gaming establishment.


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“California’s lax system of credentialing drug and alcohol counselors has allowed convicted sex offenders, embezzlers and people with their own substance-abuse problems to work with vulnerable clients, according to a new report from the state Senate’s oversight office.

With demand for treatment services expected to grow as the federal health care law takes effect, Monday’s report by the Senate Office of Oversight and Outcomes found that California is virtually alone among states in not requiring criminal background checks for people registering to be substance-abuse counselors, or even asking applicants to disclose past trouble with the law.

The Senate investigation found 23 sex offenders who have been registered or certified to work as substance-abuse counselors since 2005. Those are just the counselors with unusual names who could be matched against the state’s sex-offender database; the actual total is likely much larger, the report said.

“Obviously, the main risk is that you could have someone in a counseling position who has quite a bit of control over a client,” Maia Christopher, executive director of the Oregon-based Association for the Treatment of Sexual Offenders, said in the report.

A “balkanized” network of seven accrediting organizations largely fails to detect such problems. Counselors jump from organization to organization to avoid scrutiny of criminal convictions or when they are in danger of missing a certification deadline, the report found.

The Department of Alcohol and Drug Programs, which oversees the counseling industry, is scheduled to disappear in July and its responsibilities folded into the Department of Health Care Services. Monday’s report recommends that lawmakers consider “drastic changes” to repair the system before then, including creating a centralized database to flag people with high-risk backgrounds who seek to become counselors.

The Senate office’s investigation did not include full names. It highlighted several cases in Inland Southern California, including…”

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“As the economy recovers around Acadiana and the U.S., more and more jobs are becoming available on sites such as Craigslist in a variety of different employment fields. But the increase in employment opportunities and resulting jobs listings also opens the door to scammers high jacking the names of real companies to put out job applications geared at identity theft, not employment.

Even as the internet has made searching for jobs easier, it also provides an opportunity for ID thieves and scammers to take advantage of eager—and unsuspecting—job seekers. BBB has recently received reports from job seekers that scammers have used the names of real companies advertising jobs on to place false job applications asking for Social Security numbers.

After checking with the local oil and gas exploration company whose name was used, the human resources director confirmed that the company does not ask for Social Security numbers on their applications. The company was confirmed to be registered in the state of Louisiana through the Louisiana Secretary of State.

BBB and the United States Social Security Administration recommend that job seekers never give out Social Security numbers until they are officially employed by a company. To do otherwise would create a real risk of identity theft, damage to credit scores and financial loss.

BBB offers the following tips to avoid being taken by this or similar employment scams:

  • Exercise Caution. When using social networking sites like Facebook and online employment sites such as Craigslist, be sure to check the actual Web site of the company posting the position to verify it actually exists. If you don’t see it on their site, chances are it’s a scam.
  • Guard Your Resume.  Some job seekers …..”

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“The Equal Employment Opportunity Commission’s current enforcement priorities include eliminating hiring barriers, exploring emerging workplace issues, and examining employer compensation practices, EEOC Commissioner Victoria A. Lipnic said at an April 24 conference.

Lipnic said EEOC established these priorities and others in its FY 2013-2016 strategic enforcement plan, which commissioners approved 3-1 in December 2012 (30 HRR 1377, 12/24/12).

In regard to hiring barriers, Lipnic discussed employers’ use of applicant screening tools, such as credit history and criminal background checks, that might have a discriminatory disparate impact on certain protected groups.

Speaking at the inaugural compliance symposium of the OFCCP Institute, Lipnic also highlighted EEOC’s interest in developing issues related to the Americans with Disabilities Act, and in enforcing equal pay laws.

The institute provides training programs for federal contractors in complying with equal opportunity, nondiscrimination, and affirmative action laws enforced by agencies such as EEOC and the Labor Department’s Office of Federal Contract Compliance Programs.

Credit History, Bias Link ‘Highly Debatable.’

Lipnic observed that EEOC over the past several years has held a number of public meetings on credit history and criminal background screening for employment purposes.

Although it could be argued that using credit screens in hiring might have a disparate impact on women and minorities…”

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On July 1, 2013, the State of Colorado will be the 9th state to restrict an employer’s right to use credit reports when making employment related decisions.

Should an employer wish to procure a credit report for employment related purposes, it must be “substantially related to the employee’s current or potential job.”  The statute defines substantially related to mean one of two types of positions.

1. A position that constitutes executive or management personnel (or officers or employees who constitute professional staff to executive and management personnel) and which involves one or more of the following:

  • sets the direction or control of a business, division, unit or an agency of the business;
  • owes a fiduciary responsibility to the employer;
  • has access to customers’, employees’ or the employer’s financial information; or
  • has the authority to make payments, collect debts or enter into contracts.


2. A position that involves contracts with defense, intelligence, national security, or space agencies of the federal government.


ADDITIONALLY, the employer must also have (1) a “bona fide purpose” for requesting or using the information in a credit report and (2) the employer must disclose this “bona fide purpose” to the applicant/employee.


“Colorado recently became the ninth state to prohibit employers from using credit information for employment purposes. In the last few years, eight other states have also passed laws which, subject to few exceptions, regulate ban employers’ ability to use credit information in making employment decisions. Colorado’s law, called the “Employment Opportunity Act,” Colo. Rev. St 8-2-126, was signed into law on April 19, 2013 and goes into effect on July 1, 2013.”

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