Do state laws that require licensing – which often includes deep background screening – trump federal laws that limit background checks?
Can employers utilize information obtained from sources like Megan’s Law websites? (Megan’s Law is a commonly-used term for laws that relate to the creation of sex offender registries for public knowledge. Megan’s Law websites could be any site that lists sex offenders.)
What happens if a recently-hired employee talks about crimes committed that were not explored at the time of the application process?
These questions are not simple, yet they outline the types of issues employers face. In a recent CER webinar, Lester S. Rosen explored the topic of background checks in depth and gave us answers to participant questions at the conclusion of the program.
Q. My organization is a non-profit that provides programs and services for people with disabilities, including children. We have all of our employees undergo a criminal background check through Community Care Licensing because we have licensed childcare programs. And our employees who do not have clearance cannot be present in the licensed facilities. We notify all applicants from the start of the application process that we conduct criminal background checks. Is there anything else we should do to be sure we do not run into issues with the EEOC or others?
A.There’s good news and bad news. The good news is that you’ve identified the most glaring and cutting-edge area of this whole discussion: the EEOC trumps state law.
In the EEOC guidance, they said that if there’s a state licensing rule and they think the licensing rule tends to discriminate, they can overrule the state licensing rule and the employer could still be the subject of a complaint or lawsuit, even while they followed the state law. People familiar with how the EEOC works will tell us that the EEOC does not seriously intend to put employers in a catch-22 where they’re following state law and yet are still being prosecuted or charged, even though they’ve followed the law in good faith. They were trying to get state agencies to think through these various prohibitions so that they were not overly broad and applicants were not being eliminated unfairly. That puts employers in the middle.
It leaves employers – particularly an employer such as a non-profit that’s dealing with a population at higher risk (a particularly vulnerable population) – in a bit of a quandary. On one hand, you can’t ignore your state licensing laws. The state of California says who can or cannot get a license, and no one is going to urge you to violate state licensing laws. What I would recommend is that you still go through the other EEOC steps. Give the person a chance for the individualized assessment. Look at the criminal record even though the state law says it doesn’t matter.
I would not be cavalier about it even though the state law is being complied with. I would still want to track who is being rejected and to run through a justification and show you’ve reviewed the situation. If you run through a situation where the two are at odds – the state law says the person cannot work there yet the EEOC rules may imply they could – at that point you need to see whether or not your regulatory agency allows you to have an exemption or at least argue for an exemption.
Q. Can employers utilize information obtained from sources like Megan’s Law websites?
A.Great question. Megan’s Law brings up a number of issues. First of all, regardless of the EEOC implications, you do need to be aware that California has some particular verbiage in the statute under Megan’s Law that says employers cannot use the information to discriminate, among other things, for housing or employment unless there’s an identifiable group at risk. So, as a precursor to using it, you’ll need to be able to justify that there’s a group at risk.
In terms of the EEOC and Megan’s Law, that’s a fascinating question because the Megan’s List is a little different from the criminal record. Megan’s List tells you that the person has a status as a sex offender, but it doesn’t give the details. It may be that the offense is too old to report. However, some would say that even if the underlying crime is too old, the inclusion on that list is something employers could consider. But add the new EEOC element to it, and you have another layer.
In the real world, one of the things that you’ll discover if you look at the crimes that are registerable under Megan’s Law is that they’re the more serious crimes. So, it’s probably a self-solving situation: if a person committed a crime that’s serious enough to register, probably you can consider that based upon the unique conditions and risks of the job. It could, however, be a lesser sex crime that was serious enough to be listed but now is years old.
As you go through the process of this, consider all aspects. The short answer is that there are some special rules about it. You can consider it, but you do want to keep in mind that if a crime is minor and old you may want to take a special look before making a decision.
Q. What happens if a recently-hired employee talks about crimes committed that were not explored at the time of the application process?
A.Great question, and it happens quite a lot. We’ve seen situations where an employer calls us up, and they were not doing background checks, and then a coworker looked at the Megan’s Law website and sees that the new hire is a sex offender. If a firm did not do a background check and something comes out, it’s more complex. Either way, go back to basics.
Presumably, in your application you have a sentence that says that any person who lies or makes a material omission can be terminated the hiring process or terminate employment, no matter when its discovered. This typical language should be in every application—and be sure it says that it does not matter when the information is discovered because that covers the situation where the information is discovered at some point after hiring.
In a typical situation where someone is hired and you later discover this information, first go back to the application form and the background check and see if you or the background checking firm missed it. (For example, you can’t search every county for a criminal check – it could have occurred somewhere else). Did the person lie about where they lived or worked? Did they make a material omission in the information?
The harder situation is when you didn’t conduct a background check in the first place. You then have to go back into the details. What was the nature and gravity of the crime? How long ago was it? What is the nature of the job?
If the person lied then the new information could be used to terminate them since they were dishonest. If it was simply missed somehow, or you never did a check in the first place, then you have to go through the EEOC checklist to see whether it’s actionable. The exact action to take will be very situation-specific.
The above information is excerpted from the webinar “Background Checks in California: How To Comply with the EEOC’s Recently Issued Enforcement Guidance.” To register for a future webinar, visit CER webinars.
Lester S. Rosen, the founder and CEO of Employment Screening Resources, is a consultant, writer, and frequent presenter nationwide on pre-employment screening and safe hiring issues.