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ARTICLES
Pre-employment criminal
background checks: Why employers should look before they leap
Robert M Howie, Laurence A Shapero. Employee Relations Law Journal. New York:
Summer 2002. Vol. 28, Iss. 1; pg. 63, 15 pgs
Copyright Aspen Publishers, Inc. Summer 2002
Employment law journals are replete with advice to employers about the need to
conduct criminal background checks on prospective employees, and there is no
shortage of guidance about how to conduct such inquiries. But there is a marked
shortage of guidance about the potential risks associated with the conduct of
background checks, and there are few warnings to employers that such searches
might be illegal if they are not conducted properly. This article discusses
federal and state laws that restrict an employers ability to acquire and use
criminal background information regarding prospective employees. Te authors also
offer advice to employers about how they can comply with these laws.
Employers repeatedly have been warned in recent years that they must conduct
thorough background checks into applicants' criminal histories. If an employer
fails to conduct a thorough background check before hiring an employee, that
employer may be subject to substantial liability should that employee later
engage in criminal misconduct that harms coworkers, customers, or other third
parties. Indeed, criminal history checks are sometimes required by law for
certain types of jobs. And with our country's War Against Terrorism, certain
employers are under even more pressure to obtain and use criminal history checks.
But there is a flip side to the criminal background check story, one that has
received far less attention: Employers might be breaking the law when they
conduct criminal background checks or when they use certain information
generated by such inquiries.
This article highlights some of the important issues that employers should
consider before they conduct a criminal background check for a prospective
employee. In so doing, we first review the federal Fair Credit Reporting Act and
selected state laws governing the acquisition of criminal background information
by prospective employers. We then review the Equal Employment Opportunity
Commission's (EEOC's) views on the subject and discuss the laws of several
states that limit an employer's ability to use certain convictions or arrests in
making hiring decisions.
WHY CONDUCT PRE-EMPLOYMENT CRIMINAL BACKGROUND CHECKS?
Before discussing the limits on an employer's ability to acquire and use
information regarding a job applicant's arrest and conviction record, the
logical question to begin with is: Why gather this data in the first place? The
answer relates partly to the increase in the number of "negligent hiring" claims
filed against employers. In order to protect against this risk, employers often
want and, in some cases may be required, to investigate the criminal history of
their applicants.1 An employer's failure to determine whether an applicant has a
criminal history could indicate that the employer failed to act reasonably in
its hiring process, thereby breaching a duty to other employees, customers, or
third parties. Some state and federal laws also require criminal history checks
where employees may be working with vulnerable groups (for example, children or
hospital patients), where employees work with highly sensitive or confidential
information, or where employees are in public trust positions (police officer,
correctional officer, firefighter).2 When an employer is required to conduct
criminal records checks of some applicants, the employer might conclude that it
is easier to conduct such inquiries for all of its applicants.
The second major reason for the increase in criminal background checks is the
ease with which the information can be obtained. There are many vendors that
will quickly and inexpensively complete criminal background checks for employers.
But the ease with which such background checks can be conducted incorrectly
suggests that employers should conduct them without first understanding the laws
that govern them.
FAIR CREDIT REPORTING ACT
Congress passed the Fair Credit Reporting Act (FCRA)3 in 1970 to protect
individuals from the misuse of information on their credit report. Although the
stated focus of the FCRA relates primarily to an individual's ability to obtain
loans and credit, the scope of the FCRA, like many federal statutes, has proven
to be substantially larger than was first apparent. For employers, the key
language is contained in the FCRA's definition of "consumer report," which is
defined as any report containing information regarding a person's "credit,
character, reputation, personal characteristics, or mode of living."4 This
definition clearly includes an employer's pre-employment criminal background
check. The FCRA recognizes that employers have job-related reasons for gathering
data such as criminal records, but also acknowledges countervailing concerns for
employee privacy and for the potential misuse of personal information.
On September 30, 1997, amendments to the FCRA imposed certain limitations on an
employer's access to and use of consumer information.5 Before an employer may
request a consumer report for employment purposes, it must now obtain written
authorization from the current or prospective employee. The employer also must
provide the current or prospective employee with a clear, conspicuous written
disclosure that such a report may be obtained for employer purposes. The
disclosure and consent may be in the same document, but that document must be
separated from any other consent forms or employment application signed by
current or prospective employees.
Before taking any adverse employment action-including the decision not to hire a
prospective employee-that is based in whole or in part on information contained
in a consumer report, an employer must provide the current or prospective
employee with a copy of the report and a written description of the actual or
prospective employee's rights under the FCRA. The report must be in a form
prescribed by the Federal Trade Commission, the federal agency that administers
the FCRA. This report is designed to allow an employee to contest any
potentially erroneous information in a consumer report. If, after a short period
of time, the employer hears nothing from the prospective employee and proceeds
to take adverse action, the employer must provide the prospective employee with
yet more information, including the name, address and telephone number of the
consumer reporting agency that provided the report, and a notice of the
individual's right to dispute the accuracy of the report and obtain a copy of
the report. Although consumer reporting agencies will often provide the
appropriate paperwork, employers should independently confirm that they are in
compliance with the FCRA.
In order to avoid producing a blizzard of FCRA-mandated paperwork, some
employers rely on information from a consumer reporting agency but advise
rejected job applicants that the adverse hiring decision was based on some other
ground. Although tempting, this is risky, unlawful, and probably unwise: If,
while defending a lawsuit brought by the rejected job applicant, the employer
later is required to disclose the real reason for the hiring decision, this
could substantially undermine the employer's ability to defend that lawsuit
which, in turn, could lead to a mess of enforcement audits and other
complications. As a result, the best advice for employers is to strictly jump
through the FCRA's procedural hoops when making a decision not to hire an
individual because of information on the individual's consumer report.
Certain states, such as California, New York, Arizona and Maryland, have their
own credit reporting act laws that may provide greater protection than the FCRA.
While it is beyond the scope of this article to discuss them in detail,
employers should consult with counsel to confirm the individual requirements of
the state or states in which the employer does business.
NOT ALL BACKGROUND CHECKS ARE CREATED EQUAL
Most employers that use pre-employment criminal background checks on their
prospective employees do so by hiring third-party agencies to conduct a search
for criminal history information. The agency generally will conduct the check,
and then will forward the employer a list of convictions, if any, relating to
the prospective employee. Employers should beware, however, that the information
received is only as good as the search performed. For instance, some reporting
agencies search for convictions in United States District Court, but not in
individual state courts, or vice versa. Some states have multiple levels of
courts, such as superior courts, circuit courts, or district or municipal courts
in each county or city. Employers should check to make sure that they know what
they are getting, Is the criminal search being conducted in only one state or in
all 50 states? Is the search being made for all convictions or only those within
a certain time period (the FCRA initially provided for disclosure of criminal
convictions for seven years, but the limitation has since been repealed; some
states maintain time restrictions on convictions)? Does the search include all
types of convictions or only those involving felonies? Does the search cover all
counties or cities in a state or only some?
The answers to these questions are important for two reasons. First, of course,
the employer needs to know if it is getting the information it has bargained for.
Just as important, however, the employer needs to confirm that the scope of the
pre-employment criminal background check is no broader than permitted by
applicable state laws.
STATE RESTRICTIONS ON PRE-EMPLOYMENT CRIMINAL BACKGROUND INQUIRIES
Too few employers realize that many states have statutes that expressly limit
the scope of pre-employment inquiries into a job applicant's criminal
background. These restrictions fall into one or more of several categories.
The most common restriction prohibits employers from making any inquiries
regarding any arrest of the prospective employee where that arrest did not lead
to a criminal conviction. States with statutes that prohibit such inquiries
include Arizona, California, Colorado, Connecticut, Hawaii, Illinois, Maryland,
Massachusetts, Michigan, Missouri, Nebraska, New Hampshire, New Jersey, New
Mexico, Ohio, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia,
and Wisconsin.6 The California provision is typical:
No employer ... shall ask an applicant for employment to disclose, through any
written form or verbally, information concerning an arrest or detention that did
not result in conviction ... nor shall any employer seek from any source
whatsoever ... any record of arrest or detention that did not result in
conviction.7
While California thus broadly limits an employer's ability to make inquiries
about arrests, that statutes of many states go even farther. Michigan's civil
rights act, in language that is representative of such provisions, expressly
states that "a person is not guilty of perjury or otherwise for failing to
recite or acknowledge" an arrest record in response to an employer inquiry about
arrests that did not lead to conviction. Most states that prohibit inquiries
regarding non-conviction arrests wisely permit employers to inquire about an
arrest if the criminal prosecution is still pending, but other inquiries about
such matters might make the employer liable to the job applicant for damage
caused by the inquiry and also might subject the employer to criminal penalties.9
Certain state laws also limit an employer's ability to ask questions about the
existence of certain types of convictions or regarding convictions that occurred
some number of years before the inquiry. For example, California prohibits
employers from inquiring about any convictions for marijuana use if the
conviction is over two years old.10 Washington permits employers to obtain
information about the criminal convictions of an employee or prospective
employee only if that person, "in the course of employment, may have access to
information affecting national security, trade secrets, confidential or
proprietary business information, money, or items of value."11 Washington and
other states prohibit inquiries regarding convictions more than ten years old,12
and most states prohibit employers from asking about convictions that have been
sealed or expunged by the state.13 The particulars vary substantially from state
to state. Hawaii, for example, allows employers to obtain criminal background
information from the state, but instructs its state agencies that they are not
permitted to distribute records in response to a pre-employment background check
if the records relate to: [C]onvictions which have been annulled or expunged;
convictions of a penal offense for which no jail sentence may be imposed;
convictions of a misdemeanor in which the period of twenty years has elapsed
since date of conviction and during which elapsed time there has not been any
subsequent arrest or conviction.14
Massachusetts, on the other hand, permits employer inquiries, but requires
employers to give job applicants the following written notice if it makes such
inquiries: "An applicant for employment with a sealed record on file with the
commissioner of probation may answer `no record' with respect to an inquiry
herein relative to prior arrests, criminal court appearances or convictions."15
Other states limit the manner in which criminal background information may be
obtained. In Kansas, for example, it is unlawful for any employer or prospective
employer "to require a person to inspect or challenge any criminal history
record information relating to that person for the purpose of obtaining a copy
of the person's record in order to qualify for employment."16 Kansas does permit
employers, however, to require a job applicant to sign a release that allows the
employer to conduct a criminal background check.17
These generally applicable limitations on pre-employment screenings often are
accompanied by a variety of loopholes and exceptions. So even when most
employers in a particular state might be barred from making inquiries about
arrests or certain types of convictions, law enforcement agencies, healthcare
providers, childcare facilities, defense contractors, and other employers may be
permitted or even required by that state's law to conduct thorough criminal
background checks regarding prospective employees.18 For example, Washington,
which limits the scope of permissible inquiries for most employers, expressly
requires pre-employment criminal background checks by employers that provide
services to children, developmentally disabled persons and vulnerable adults?19
Washington law further dictates the types of convictions about which such
employers are to inquire.
The message for employers should be clear: Check applicable state requirements
before directing any criminal background inquiries to a prospective employee,
before conducting any pre-employment criminal background check, and before
engaging any third-party contractor to perform such a check. As a practical
matter, the ease with which applicable state requirements can be ascertained
varies widely from state to state, in part, because there is little consistency
in the way that states codify such requirements. Some states codify their
restrictions on pre-employment inquiries in a civil rights provision, while
others address such matters in a labor code, a criminal code, in the code of
criminal procedure, or delegate to state regulatory agencies the authority to
promulgate regulatory requirements on such matters. California has applicable
provisions in both the labor code and the penal code. Some states assign
enforcement responsibility for such matters to the state attorney general's
office or to a civil rights agency while others assign this responsibility to
the state labor division. Washington, California, and other states publish
information guides for employers but other states are sadly deficient in this
area. And in other states, seemingly broad prohibitions on the acquisition or
use of criminal conviction information are qualified by exceptions that
virtually swallow the restriction.
As a result, this is not an area in which a quick survey of state law is likely
to lead to an accurate and comprehensive understanding of applicable
requirements. Moreover, we expect that state legislatures may be reexamining and
revising such laws in the wake of September 11.
ONCE AN EMPLOYER HAS THE INFORMATION, WHAT CAN THE EMPLOYER USE IT FOR?
Once an employer has complied with the notice and consent obligations under the
FCRA, provided the proper disclosures, and satisfied state laws governing the
acquisition of pre-employment criminal background information, the next
challenge is to determine whether and how that information can be used by the
employer.
For example, assume that an employer learns through a preemployment criminal
background check that several prospective employees have convictions: one has a
six-year-old conviction for possession of marijuana; a second has a two-year-old
conviction for theft; and a third has a ten-year-old conviction for assault. Do
these convictions provide a sufficient basis for the employer to reject the
application? Can the employer use this information as one of a number of factors
in making the hiring decision? Should it? Or must the employer substantially
disregard the criminal background information and make a hiring decision based
on the application's other qualifications? The answers to these questions vary
depending on both federal and state restrictions on the use of arrest and
conviction records in the hiring process.
U.S. Equal Employment Opportunity Commission
In 1981, the EEOC issued guidance on pre-employment inquiries that included
advice on the use of arrest and conviction records.20 The agency takes the
position that because "members of some minority groups are arrested
substantially more often than whites in proportion to their numbers in the
population, making personnel decisions on the basis of arrest records involving
no subsequent convictions has a disproportionate effect on the employment
opportunities of members of these groups."21 For this reason, the EEOC, and some
courts, believe that an employer's use of arrest records to disqualify job
applicants in unlawful discrimination. The EEOC's preemployment inquiry guide
further states that the employer's mere request for this information tends to
discourage minority applicants and is thus illegal. As reflected by state laws,
discussed above, many state legislatures have accepted the EEOC's reasoning on
this point.
Certainly, blanket rejection of applicants on the basis of prior arrests could
qualify as disparate impact discrimination under Title VII of the Civil Rights
Act of 1964, and is unwise. The EEOC grudgingly acknowledges that the use of a
prior conviction to bar an applicant from employment may not be illegal, but
recommends that employers "give fair consideration to the relationship between a
conviction and the applicant's fitness for a particular job."22 The agency adds
that criminal convictions should be cause for adverse hiring decisions only if
"their number, nature and recentness would cause the applicant to be unsuitable
for the position."23 The agency's position raises an important question: Do
employers need to connect every prior conviction with a "business reason" to
reject the applicant or are there some convictions that employers can use as
disqualifying without more? The EEOC does not, however, provide any concrete
guidance on what kinds of convictions should be disqualifying and how recent
they must be.
At least one court has concluded that an employer was justified in imposing a
lifetime bar to employment for any convictions on theft crimes. In Equal
Employment Opportunity Commission v. Carolina Freight Carriers Corp., 723 F.
Supp. 734, 752 (S.D. Fla. 1989), the EEOC argued that a lifetime bar to
employment based on a theft conviction had a disparate impact on Hispanics, and
was not justified by business necessity. The court disagreed, holding that an
applicant's "honest character" was highly relevant to the hiring decision and
that a prior theft conviction, even one over ten years old, was a legitimate
factor. The court opined forcefully that "[ilt is exceedingly reasonable for an
employer to rely upon an applicant's past criminal history in predicting
trustworthiness." The court concluded that it did not matter whether the
employer's policy had a disparate impact on Hispanics because the employer
retained the right to "refuse to hire persons convicted of a felony." In a
colorful and direct paragraph, the court snapped that a rule "refusing honest
employment to convicted applicants is going to have a disparate impact upon
thieves" and "that some of these thieves are going to be Hispanic is
immaterial."
Other courts have reached a different conclusion. In Green v. Missouri Pacific
Railroad Co., 523 F.2d 1290 (8th Cir. 1975), the Eighth Circuit rejected an
employer's practice of refusing employment to any person convicted of a crime
other than a minor traffic offense. The court held that the employer's policy
did not give any consideration to the nature and seriousness of the crime in
relation to the job sought, and that it had a disparate impact on
African-American employees.
State Laws
Just as various states limit or prohibit the acquisition of criminal background
information for prospective employees, so do states also limit the manner in
which employers can use such information, even if it has been lawfully obtained.
Many state positions appear to be based, in part, on the types of discrimination
concerns that have been articulated by the EEOC.
As an initial consideration, some states require that criminal background
information must be kept confidential. In this respect, Connecticut law requires
that:
The portion of a job application form which contains information concerning the
arrest record of a job applicant shall not be available to any employee or
member of the company, firm, or corporation interviewing such applicant except
the members of the personnel department or the person in charge of employment if
such company, firm or corporation has no personnel department.24
Washington and Pennsylvania also are among the states requiring that information
collected from criminal background checks must be used only for the initial
employment decision and must otherwise be kept confidential.25
Several states prohibit employers from using an applicant's criminal conviction
record as an absolute bar to employment. New York law generally requires that:
No application for any license or employment ... shall be denied by reason of
the applicant's having been previously convicted of one or more criminal
offenses ... unless (1) there is a direct relationship between one or more of
the previous criminal offenses and the specific license or employment sought or
(2) the issuance of the license or the granting of the employment would involve
an unreasonable risk to property or to the safety or welfare of specific
individuals or the general public.26
Similarly, Hawaii prohibits discrimination against any applicant on the basis of
their arrest or court record unless the applicant's record of criminal
conviction bears a rational relationship to the duties and responsibilities of
the position for which the applicant is applying.27 Connecticut, apparently, has
less conviction about the subject of convictions:
The general assembly finds that the public is best protected when criminal
offenders are rehabilitated and returned to society prepared to take their
places as productive citizens and that the ability of returned offenders to find
meaningful employment is directly related to their normal functioning in the
community. It is therefore the policy of this state to encourage all employers
to give favorable consideration to providing jobs to qualified individuals,
including those who may have criminal conviction records.28
Connecticut, while only encouraging private employers to disregard an
applicant's criminal history, generally requires that its state agencies must
not discriminate on the basis of an applicant's criminal convictions. Many other
states also encourage or require public employers to disregard a record of
criminal convictions except in specified circumstances.29
Several states permit criminal conviction information to be used by the employer
but also require that employees be given specific written notice when the fact
of a criminal conviction is the basis for the employer's decision not to hire
that individual. States with this requirement include Pennsylvania,30
Connecticut,31 and Georgia, the last of which requires that job applicants who
are rejected based on a criminal conviction must be provided with written notice
that discloses the specific reason for the adverse hiring decision, the fact
that the employer obtained criminal conviction records from the state, and the
specific information in those criminal records that caused the employer to
reject the applicant.32 Note that these notice requirements are thematically
consistent with FCRA requirements discussed above.
Of the states that have restrictions on the use of prior criminal convictions in
the hiring process, the most common restriction appears to be an effort to limit
the disqualifying convictions to those that are job-related. In most cases, this
might require a case-by-case evaluation on the part of the employer, but in the
eyes of some states, the policy underlying these laws (rehabilitation of prior
offenders) outweighs the burden placed on the employer.
CREATING A SYSTEM THAT WORKS
So in light of this patchwork of laws, regulations, and guidelines, what should
employers do with arrest and conviction records that they obtain? Given the
current state of the law, it seems very unwise for employers to use arrest
records to disqualify a job applicant. Not only does the EEOC view this conduct
as having a disproportionate affect on minorities, but many states flatly
prohibit using arrest records at all in the hiring process. The one twist to
this general rule occurs if an applicant has a pending criminal charge when he
or she is applying for a position. In that case, the employer should not use the
fact of arrest as a disqualifying factor, but should consider conducting an
independent assessment of the underlying charges against the applicant. For
instance, if the applicant is being charged with theft at a prior job, the
employer should contact the prior employer to gain information about the
allegation. An employer would be entitled to deny employment to the applicant
based on what the employer knows of the facts underlying the criminal charge.
The employer need not be persuaded beyond a reasonable doubt of the applicant's
guilt, but should be able to articulate a reasonable basis to believe that the
applicant has committed some illegal or improper act that betrays the
candidate's unsuitability for the position being sought.
In terms of employer's use of conviction records, when the federal and state
laws and regulations are looked at together, the critical theme that generally
emerges is job-relatedness. In other words, if the conviction record is related
to the job that the applicant is seeking, that the employer can use that
conviction to deny employment to the applicant. If the conviction is not related
to the job, the employer can, in some states, still use the conviction as a
disqualifying factor, but there is increased risk of a disparate impact claim
from the rejected applicant. In other states, an employers are not permitted to
use the non-job-related conviction as a disqualifying factor. The EEOC has taken
the position that employers cannot have a blanket policy denying employment to
applicants with prior convictions, and some courts have agreed with the
approach.
A second theme that emerges from state and federal law is a concern that only
recent convictions should be relevant in hiring decisions. Various states
restrict employers from using prior convictions to deny employment if the
convictions are anywhere from five to ten years old. The EEOC also suggests that
older convictions should be given less weight (or no weight) in the hiring
process.
Employers that decide to use only "job-related" convictions, or who are located
in states that require a job-relatedness analysis, next face the difficult task
of deciding which convictions are job-related. Although federal and state law
provide little guidance on this subject, employers probably are safe in assuming
that convictions for crimes of dishonesty (for example, perjury, embezzlement,
theft) are nearly always, if not always, job-related. Even if a prospective
employee will not be working in a job with money or finances, employers have a
right to expect honesty and integrity of their employees. Violent crimes present
another question. Many employers would characterize a violent crime conviction
as job related, such as a conviction for assault, battery, domestic violence,
robbery, or gun possession. Drug convictions present yet another problem. Some,
but not all, employers include drug convictions in the disqualifying category,
but others make distinctions in the type of drug conviction (for example,
selling vs. using, heroin vs. marijuana). Finally moving violations (motor
vehicle convictions) are the least likely to be job-related, unless of course
the job position involves driving.
In order to regulate how pre-employment criminal background checks are used,
employers are well advised to draft a written policy regarding the use of
criminal convictions in the hiring process. In a large organization, having a
written policy is critical because of the many different individuals who may be
handling employment applications. A pre-employment criminal background check
policy can assist the various individuals involved in the hiring process by
establishing definite parameters regarding the manner in which pre-employment
inquiries must be conducted and the types of convictions that will be a bar to
particular employment positions. A pre-employment criminal background check
policy can lower the risk that a recruiter will unknowingly misuse convictions
in making the decision to hire. For instance, a policy might require that a
person applying for a driving role for a pizza delivery company might be
disqualified by a conviction for DUI but, in many states, it might not be lawful
for the employer to reject an applicant for an office position solely on the
basis of that conviction. A policy might also state that criminal convictions
relating to trustworthiness would be a bar to most, or all, applicants.
Multi-state employers should consult with local counsel to verify that their
policies are in compliance with various state requirements.
Perhaps the most dangerous pitfall that employers encounter in the hiring
process involves consistency, or the lack thereof, in the use of criminal
convictions. Even an employer with a well-crafted hiring policy (that is, one
that specifically articulates which convictions will disqualify an applicant for
which specific jobs) may get itself in trouble when it encounters an individual
case in which it wants to make an exception to the rule. For instance, it is
common for an applicant to go through the interview process while a
pre-employment criminal background check is being conducted at the same time.
The hiring team at an employer may decide that the applicant is a star, and then
the criminal background check comes back and reveals a job-related conviction.
Sometimes, the human resources team may receive pressure from managers or
corporate officers to make an exception because there is a great candidate they
want to hire. Despite the obvious and understandable temptation to make
exceptions to a background check policy, this is a very risky endeavor. Not only
can an exception subject the company to exceptional liability if the employee
later commits some workplace infraction that is similar to the prior conviction,
but it can also lead to allegations of discrimination by a later applicant who
is a member of a protected group and who does not receive a similar exception.
One final concern relates to occasional delays in getting information from
pre-employment criminal background checks. Given the speed of the hiring process
at some companies, it will inevitably happen that applicants will be hired and
begin working before a pre-employment criminal background check is complete.
What should employers do if the criminal background check shows a disqualifying
conviction? The best course is likely to end the employment relationship, in
spite of the awkwardness of the situation. The employer has presumably advised
the employee that his or her offer is contingent on successful completion of the
criminal background check. If the employer simply ignores the criminal
background check information and does not terminate the employee, then the
employer faces heightened risk of liability if the employee commits an
infraction, as the employer will be on notice of the prior conviction. Employers
should follow up on pre-employment criminal background checks to make sure they
receive the relevant information and then implement the necessary personnel
moves as quickly as possible.
As noted earlier, employers should implement a system for storing records
generated by pre-employment criminal background checks. Many states require that
such information be kept confidential and separate from other employment
records.
CONCLUSION
In today's world, there seems little doubt that pre-employment criminal
background checks are here to stay. Employers need to think carefully, however,
before simply obtaining and using all of the available information. By carefully
following the procedures for obtaining an applicant's criminal conviction
record, by observing relevant state and federal laws on the use of criminal
conviction information, and by having a well-crafted policy to guide the
recruiting and hiring staff, employers can implement and maintain pre-employment
screening policies within the confines of the law while still protecting their
workforces, their property, and their customers from harm.
NOTES
1. In Carlsen v. Wackenhut Corp., 73 Wn. App. 247,868 P.2d 882 (Wn. App. 1994),
the Washington Court of Appeals suggested that, at least for a security guard
position, an employer must conduct a criminal records check in order to fulfill
its obligation to ascertain whether the employee is fit for the position.
2. See, e.g., National Child Protection Act of 1993, 42 U.S.C. 5101, 5119 et
seq. (framework through which States can require screening through criminal
records checks of care providers, including volunteers who work with children,
the elderly, and individuals with disabilities).
3.15 U.S.C. 1681-16811.
4. 15 U.S.C. 168la(d).
5.15 U.S.C. 51681b, 1681e.
6. See Mark W. Bennett, Donald J. Polden, & Howard J. Rubin, Employment
Relationships: Law and Practice 12.02(4), Appendix 12B (2001 Supplement); Lex K.
Larson & Theodore F. Shults, Employment Screening 22.10, 9.04 (2001).
7. Cal. Labor Code 432.7(a).
8. Mich. Comp. Laws 537.2205A(l); see also, Cal. Penal Code 1000.4; Col. Rev.
Stat. 24-72-308(3).
9. See, e.g., Cal. Labor Code 432.7(c) & (d).
10. Cal. labor Code S432.8.
11. Wash. Rev. Code $43.43.815(1).
12. Wash. Admin. Code S162-12-140.
13. See Barbara Kate Repa, Your Rigbts in the Worle 6/10-6/18 (2000).
14. Haw. Rev. Stat. 831.31(b).
15. Mass. Gen. Laws ch. 276, S 100A.
16. Kan. Crim. Proc. Code 522-4710(a).
17. Kan. Crim. Proc. Code 522-4710(c).
18. See, e.g., Wash. Rev. Code S43.43.830 (requiring criminal background checks
of any applicant for a job in which the applicant will have access to children
or vulnerable persons).
19. Wash. Rev. Code 43.43.832.
20. EEOC Guide to Pre-Employment Inquiries, Fair Employment Practices Manual
(BNA) 443:65 (1981).
21. Id. at 67.
22. Id.
23. id,
24. Conm Gen. Stat. S31.51i.
25. 18 Pa. Stat. Ann. S9125; Wash. Rev. Code J43.43.834(5).
26. N.Y. Correct. Law S752(l) & (2).
27. Haw. Rev. Stat. 5378-3.
28. Conn. Gen. Stat. S46a-79.
29. See, e.g., Wis. Stat. Ann. S111.321.
30. 18 Pa. Stat. Ann. $9125.
31. Conn. Gen. Stat. &6a-79.
32. Ga. Code. Ann. S35-3-4(b).