Employers often use job applications to seek information about candidates’ conviction records. Criminal background checks are often performed before hiring an employee. The reasons for seeking the information seem obvious, but unfortunately, how the information can be used is not. In fact, sometimes it seems employers are stuck in a “holding cell” when it comes to dealing with applicants and employees with arrests and criminal convictions. Let’s look at the rules to follow and the pitfalls to avoid in factoring criminal history into your hiring decisions.
Applicable Law and Guidance
When an applicant’s or employee’s criminal history comes into play, the fact is there aren’t necessarily any clear answers regarding the employer’s and the individual’s rights in every situation. In employment law circles, there is an ongoing debate regarding the information employers should obtain about applicants and employees and how the material should be used. At least a few guideposts, however, do shed some light on the situation.
The Equal Employment Opportunity Commission (EEOC) has issued guidance stating that employers shouldn’t ask about arrest records or use a criminal conviction as an absolute bar to employment. Instead, the agency encourages employers to consider (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense, the conduct, and/or the completion of the sentence, and (3) the nature of the job being held or sought. Those are commonly known as the “Green factors” based on language in a 1975 8th Circuit case, Green v. Missouri Pacific Railroad.
Based on the EEOC’s position on assessing an applicant’s criminal history, which several courts have adopted, you should think twice before implementing a strict “no felony” hiring policy. The rationale behind the agency’s position on the issue is that very broad and rigid criminal history screening policies have a disparate impact on black and Hispanic applicants in violation of Title VII of the Civil Rights Act of 1964, which precludes race discrimination in employment.
In addition, several states have enacted legislation to “ban the box,” referring to questions about criminal history on employment applications, which are often presented in the form of a “box” for applicants to check. According to National Employment Law Project guidance on ban-the-box or “fair chance” policies and laws, published in April 2018, 11 states (California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington) have passed laws prohibiting private employers from asking questions about an applicant’s conviction history on a job application. In addition, several cities around the country have enacted ban-the-box laws.
Currently, since Tennessee has not enacted ban-the-box legislation, it’s still permissible in the state for employers to include questions about criminal history on an employment application. Note also that a ban-the-box law doesn’t mean that an employer can never inquire about an applicant’s criminal history; rather, generally, the laws simply provide that an employer cannot ask the question on an application. The laws are designed to encourage employers to conduct an individualized assessment of criminal history at a later stage of the hiring process rather than simply disqualifying a candidate at the outset based on the applicant having a criminal record.
Employers that use third-party vendors to conduct criminal background checks also should be mindful of the requirements of the federal Fair Credit Reporting Act (FCRA). The FCRA doesn’t restrict your hiring decisions or impose any particular criteria for assessing criminal history. Rather, the law requires you to obtain authorization from any individual who will be the subject of a background check conducted by a consumer reporting agency and to provide the individual with notice and a copy of the applicable report before taking any adverse action. Failure to comply with the FCRA’s requirements can result in civil liability, including monetary damages and penalties, which can be significant, particularly if your noncompliant practices affect a class of individuals.
Beware of Negligent Hiring
Not all states have jumped on board the ban-the-box trend, but it’s clear that more and more authorities believe employers should treat criminal history as a type of protected category. As a result, you would be well-advised to carefully consider any adverse action based on criminal history.
At the same time, there are times when it definitely isn’t in your best interest (legally or otherwise) to employ someone with a criminal history, particularly with respect to arrests related to honesty, violent crimes, and drug or theft convictions. In addition to concerns about the safety of your employees and your assets, you should be on guard for possible negligent hiring and retention lawsuits if an employee with an arrest or conviction record harms a coworker or third party.
State law standards for negligent hiring and retention claims differ. Typically, however, in addition to the standard elements of a negligence claim (i.e., a duty was owed to the plaintiff, the defendant breached that duty, and the breach caused harm or injury to the plaintiff), the alleged victim also must prove that your company knew or should have known about the employee’s unfitness for the job or propensity for violence, which caused the harm. Some courts also appear to hold that an employer is responsible for an employee’s violent act if any employer knew or should have known of the employee’s propensity for violence, even if the individual didn’t share the information with the employer.
You may be thinking that a negligent hiring or retention claim should be barred by a state workers’ compensation law’s exclusivity provision if a worker injures a coworker. State courts, however, may not be willing to dismiss a claim based on the workers’ comp exclusive remedy provision—finding that a violent act against a coworker doesn’t “arise out of employment.”
Practical Guidance
So it seems employers may be between a rock and a hard place when it comes to assessing an applicant’s criminal history. However, here are some steps that may help:
- Find out if you are hiring employees in any ban-the-box jurisdictions. Strike any criminal history questions from your application form in those jurisdictions.
- Ask for conviction information on job applications if it’s legal to do so, but note on the application that it isn’t an absolute bar to employment.
- Include language on the job application stating that falsification is grounds for not hiring a candidate and for terminating employment.
- Request criminal background checks from a credible source, and carefully consider the search parameters. Some background search companies don’t report convictions more than seven years old but may be willing to provide the service for a longer period of time if you request it.
- Make sure you understand and comply with the FCRA’s requirements.
- Repeat background checks periodically on a nondiscriminatory basis. (Note: Your FCRA-compliant authorization form you provide to applicants should state that the individual understands that updated background checks may be obtained throughout his employment, with no further consent required.)
- Implement a policy requiring all employees to report an arrest or criminal conviction of their own and of a fellow employee.
- Confirm with your employment practices liability insurance (EPLI) and/or general liability insurers that negligent hiring/supervision/retention claims are covered.
- If you obtain information about an arrest or conviction, look back at the EEOC guidance and the Green factors, and consider consulting legal counsel.
Bottom Line
There are no clear answers when you’re considering arrests and convictions, but a well-thought-out, proactive plan can help soften the blow when faced with a negligent hiring or retention claim. As always, when in doubt, you should seek the advice of an experienced employment attorney.
Paula G. Ardelean is a Partner in the Ridgeland, Mississippi office of Butler Snow, and editor of Tennessee Employment Law Letter. She may be reached at paula.ardelean@butlersnow.com.
Kara Shea is a Partner in the Nashville office of Butler Snow, and editor of the Tennessee Employment Law Letter. She may be reached at kara.shea@butlersnow.com.