July Webinar Advanced Criminal Record Checks

Slide1: 

LEGAL CONTEXT OF CRIMINAL BACKGROUND CHECKS

Competing Interests: 

Competing Interests Employers’ view – prevent hiring Dangerous/dishonest employee Employees’ view – do not discriminate Give me a second chance

Negligent Hiring: 

Negligent Hiring Employers do not want to hire those with a violent past for fear of injury to customers/co-workers: Murder Assault Rape Armed Robbery

Discrimination: 

Discrimination Criminal Background Check – screening tool Must not have an adverse impact on protected groups Conventional wisdom says minorities have a higher arrest/conviction rate = adverse impact (may not be true in a given area or for a given crime) Can overcome adverse impact if employer can show business necessity or no adverse impact

Business Necessity: 

Business Necessity Does the existence of criminal conduct create a risk the employer does not want to take? Can the employer achieve the same results by means that do not have an adverse affect?

EEOC - Guidelines: 

EEOC - Guidelines Nature of offense Length of time since conviction/release Nature of job sought/held Convictions: EEOC Notice No. 915 Arrests: EEOC Notice No. 915-061

EL v. SEPTA, 479 F. 3d 232 (3rd Cir. 2007): 

EL v. SEPTA, 479 F. 3d 232 (3rd Cir. 2007) Put background screening to the same validation standards of other employment screening Must prove that past conviction creates a risk beyond that of those without the conviction Employer had a matrix of crimes and disqualification Could not justify matrix – no scientific study Had experts at trial to justify standards and plaintiff did not challenge these experts Plaintiff lost

What Is A Conviction?: 

What Is A Conviction? FCRA does not define FDIC – any plea of guilty Infractions/violations/offenses e.g. New York minor crimes classified as an “offense”

A Rose Is A Rose: 

A Rose Is A Rose The federal statue relating to “crimes” could not be negated by New York re-characterizing some crimes as non-crimes

Now You Have The Record What Do You Do With It?: 

Now You Have The Record What Do You Do With It? Arrest can be used to make employment decisions’ Silvera v. Orange County School Board, 244 F.3d 1253 (11th Cir. 2001) Considered plaintiff’s past arrests - not convictions – to demostrate that plaintiff was violent – that justified termination FCRA Sec. 605 Arrests = 7 years Convictions = indefinite

State Limitations: 

State Limitations 11 States have their own limits with the following salary caps: State Years Salary Cal 7 All* Hawaii 10 All Kansas 7 $20,000 Maryland 7 $20,000 Massachusetts 7 $20,000 Montana 7 All Nevada 7 All New Hampshire 7 $20,000 New Mexico 7 Credit Only New York 7 $25,000 Washington 7 $20,000 *Dropped $75,000 in 2001; therefore may be preempted Sec. 625 (b)(1)(E) Two States have limitations that are preempted by the FCRA: Texas and Colorado

State Limitations On Employer Consideration: 

State Limitations On Employer Consideration Georgia – Youthful offender Massachusetts – Old misdemeanors, convictions for a few California – Arrest w/o convictions Deferred sentence Marijuana – 1 oz.

Which State Law Applies?: 

Which State Law Applies? A California resident is applying to work for a Massachusetts based company. He will work in their Oklahoma Plant.

Reporting Scenarios: 

Reporting Scenarios Deferred sentence/adjudication withheld – entry plea of guilty, 1-5 years until court hears dismissal Between guilty plea and dismissal - Report plea of guilty - Disposition sentence deferred until ____ Time has passed without dismissal Automatic dismissal – report dismissed If need motion to dismiss and no dismissal then report as guilty plea and deferred

Arrest With No Disposition: 

Arrest With No Disposition Arrest with no charges - consider them gone after 1 year Charge without disposition -check docket – is there a reason for no disposition? - motions filed - bond forfeited - warrant issued Molestation charged – dismissed per deferred sentence – conviction for failure to register as a sex offender can be reported. Convicted on 9/1/98 probation 5 years – is this still current (7 years) – No. FTC does not include “probation” to extend reporting – parole does extend – here case ended on 9/1/98 – could be reported to 9/1/05 Convicted 8/1/99, 10 years, suspended on probation for 10 years with restrictions. Can you report this today? FTC says too old – I question their position – employer needs to know of restriction. The case is not over. CF – is a traditional case designation for a felony case. However, a plea or conviction can be for a misdemeanor. Do not assume that any conviction is a felony.

Identifiers: 

Identifiers DOB – not discriminatory to ask Sheehan v. Daily Racing Form, Inc., 104 F.3d 940 (7th Cir. 1997) Race – employer must collect for applicant flow analysis No valid reason not to collect and provide to CRA Tear off or separate sheet