• To Inquire, or Not to Inquire - The Risks of Asking Job Applicants About Prior Arrests and Convictions
  • June 6, 2012 | Authors: David N. Anthony; Christina H. Bost Seaton
  • Law Firms: Troutman Sanders LLP - Richmond Office ; Troutman Sanders LLP - New York Office
  • Your company takes great pride in hiring an efficient, productive, and safe workforce.  In an effort to ensure the safety of your employees and customers, your initial application form requires all job applicants to check a box "yes" or "no" to the following question:  "Have you ever been convicted of a crime?"  When reviewing a stack of applications, you notice that 10 applicants checked "yes" to this question.  Because you still have hundreds of applications to choose from, you remove those applicants from consideration based on their prior conviction history.  Has your company just violated the law?

    The answer to this question varies significantly from state to state.  In some states, the law imposes very few restrictions on inquiries into an applicant’s arrest and conviction history.  In others, there is no doubt that the conduct described in the above example is prohibited.  Of course, most states fall somewhere in the middle, allowing employers to ask certain narrowly tailored questions, but also requiring them to show some reasonable connection between the conviction or arrest and the denial of the position sought.  However, as the EEOC recently made clear, your company could face potential liability even in the complete absence of state laws restricting such inquiries.

    In 2011 the EEOC entered into a $3.1 million settlement with a company that disqualified applicants based on their arrest and conviction history.   The problem with this practice, according to the EEOC, is that it may disproportionately affect minority applicants, giving rise to an adverse impact claim for race discrimination in violation of Title VII of the Civil Rights Act of 1964.  Specifically, the EEOC alleged that the company’s practice disproportionately excluded minority applicants - over three hundred of them.

    This article addresses the current state of the law concerning inquiries into applicants’ arrest and conviction history and provides practical guidance and recommendations to help employers avoid potential claims.

    The EEOC Discourages Inquiries into Arrests and Convictions

    Although there is no federal law that clearly prohibits employers from asking about arrests and convictions, the EEOC has consistently advised that "using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way."  However, some inquiries may be appropriate if they are job-related and relate to convictions or arrests that are relatively recent.

    In April 2012, the EEOC issued new guidance concerning the use of arrest and conviction records and potential liability under Title VII.  While a pre-employment inquiry concerning criminal records does not in itself violate Title VII, the use of criminal record information as part of the screening process may violate Title VII if it disproportionately excludes protected class members from consideration for employment.  If a screening policy has a disparate impact on protected class members (i.e., if it tends to exclude certain protected classes from further consideration) the EEOC claims that the policy must be job-related and consistent with business necessity in order to be lawful.

    The EEOC’s Position on Conviction Inquiries

    The EEOC has questioned the value of inquiring into an applicant’s conviction history, noting that "there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction."  Accordingly, the EEOC recommends that "employers not ask about convictions on job applications and that, if and when they 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."

    Employers can satisfy the "job related and consistent with business necessity defense," by using targeted inquiries that consider at least (a) the nature of the crime; (b) the time elapsed since conviction; and (c) the nature of the job in relation to the crime.  In addition, the EEOC has advised that employers should perform an "individualized assessment" for applicants who are excluded as a result of the conviction inquiry.  An "individualized assessment" means that (i) the applicant is notified that he has been screened out because of a criminal conviction; (ii) he is given an opportunity to demonstrate that the exclusion should not be applied due to his particular circumstances; and (iii) the employer must consider whether the additional information provided by the applicant warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.  The EEOC’s recent guidance clarifies, however, that  an employer may be able to justify a targeted criminal records screen solely by considering (a) the nature of the crime; (b) the time elapsed; and (c) the nature of the job, although "[s]uch a screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question."

    The EEOC’s Position on Arrest Inquiries

    The EEOC has noted that "[t]he fact of an arrest does not establish that criminal conduct has occurred."  However, the EEOC has also noted that "[a]lthough an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.  The conduct, not the arrest, is relevant for employment purposes."

    State Laws Relating to Criminal Inquiries by Employers Vary Widely

    The laws relating to criminal inquiries are markedly different from state to state.  Although you should be aware of the law in each state in which your company recruits employees, here are just a few examples of what can and cannot be asked during the application and hiring process:

    • California:  Employers are prohibited from asking about an applicant’s arrest or detention that did not result in a conviction.  Although employers are allowed to inquire into certain convictions, they cannot seek any information concerning the following: (1) convictions for which the record has been sealed or expunged; (2) any misdemeanor conviction as to which probation has been completed; or (3) certain marijuana-related convictions that are more than 2 years old.

    • District of Columbia:  It is unlawful for employers to "require the production of any arrest record or any copy, extract, or statement thereof, at the monetary expense of any [applicant]."  To the extent such information is requested, it may only relate to convictions or arrests that have occurred within the prior 10 years.

    • Georgia:  In Georgia, employers are generally not prohibited from inquiring into arrests or convictions.  However, Georgia law affords some protection to first offenders.  Under the so-called "first offender law," certain first offenses are not considered "convictions" and may not be used to disqualify a person in any application for employment.

    • Illinois:  Employers cannot inquire into or use the facts of an arrest or criminal history record that has been expunged, sealed, or impounded as a basis to refuse to recruit or hire an applicant.  Also, applications must contain specific language that states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest.

    • New York: Employment cannot be denied on the basis of a prior conviction, unless (1) there is a direct relationship between one or more of the offenses and the specific employment sought by the applicant; or (2) the granting of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.  As such, employers in New York cannot simply deny employment on the basis of a prior conviction standing alone.  Instead, there are eight statutory factors that must be considered to determine the fitness of an applicant, including, among other things, the bearing the criminal offenses have on the individual’s ability to perform the job; the time that has elapsed since the criminal offense; the age of the individual at the time they committed the offense, the seriousness of the offense; and the individual’s rehabilitation record.

    • Virginia:  Pre-employment inquiries concerning convictions are not prohibited under Virginia law.  However, an employer cannot, in any application, require an applicant to disclose information about an arrest or criminal charge that has been expunged.

    As you can see, the law regarding criminal inquiries is not always consistent or predictable from state to state.  Some states, such as North Carolina and Texas, place very few limitations on such inquiries.  Other states take a much more restrictive position, such as Hawaii, which has implemented a complete ban on inquiries relating to arrest history or convictions during the application process.

    What is the lesson here?  Make sure that your company understands the law of each state in which it recruits workers.  Complying with the restrictions of state law can become particularly burdensome for employers who recruit online, as applicants from multiple states might apply for available positions.  Under these circumstances, you should assume that the most restrictive laws apply, be prepared to show that the inquiry is job-related, and make your inquiries as narrow as possible.

    Criminal Inquiries by Employers Are Sometimes Subject to Local Ordinances

    Knowing the law of each state is crucial, but it may not always be enough.  Employers should also be mindful of local laws relating to criminal inquiries.

    For instance, under Pennsylvania state law, employers may inquire into misdemeanor and felony convictions, but only to the extent they relate to the applicant’s suitability for employment in the particular position sought.  There are no state laws relating to arrests.  However, a recently-enacted ordinance in the City of Philadelphia restricts employers from inquiring into arrests that did not result in conviction.  The ordinance also prohibits employers from seeking information about convictions until after the employer has conducted a "first interview."

    Similarly, a New York City law prohibits city employers and agencies from asking about an applicant’s criminal history on initial job application documents, or in the initial interview.  When an agency does review an applicant’s criminal history, it is limited to considering felony convictions, unsealed misdemeanor convictions, and pending charges.

    Compliance with Criminal Inquiry Laws May Also Implicate Other Federal and State Laws

    Before employment can be denied on the basis of a prior conviction, many states, like New York, require employers to show a reasonable relationship between the prior offense and the specific type of employment sought.  Consider, for instance, the example from the beginning of this article.  If an applicant in New York State replied "yes," indicating that he or she had a prior conviction, the employer would then need to learn more about the particular offense to see if it bears any relation to the position.  One way to obtain such information is through a criminal background report, which may implicate the Fair Credit Reporting Act ("FCRA") or related state laws.

    The FCRA imposes numerous technical, procedural, notice and timing obligations on employers who use credit reporting agencies to obtain criminal background reports.  Among other things, employers must provide a clear, written notice disclosing the intention to obtain a consumer report for employment purposes.  Employers must also obtain written authorization from applicants, and allow sufficient time for applicants to contest any of the information contained in a consumer report prior to denying employment or taking some other type of "adverse action" against the individual. If the employer takes an "adverse action" based upon the information contained in a consumer report, the employer then must provide the applicant or employee with notice (an "adverse action notice") of this fact as well as including other disclosures.  Failure to do so may lead to claims from individual applicants or, worse yet, an entire class of applicants, alleging that their rights under the FCRA were violated.

    Recommendations for Employers

    Criminal inquiries remain an important tool for employers.  They are a necessary and vital means by which employers may protect themselves against various forms of liability, including negligent hiring claims.  Indeed, some states require employers to inquire into conviction and arrest histories for jobs that involve caring for elderly individuals or children.

    Given the increasing risk of liability, however, employers should proceed with caution throughout the application process.  Accordingly, employers should keep the following points in mind when inquiring into conviction and arrest histories:

    • Understand the law of the states (and, if possible, the localities) in which your company recruits prospective employees.

    • Avoid the use of broad questions such as "Have you ever been convicted of a crime?" if possible and, in accordance with the laws of your state and locality, try to narrow these questions with time limitations and/or the degree or nature of the crime (i.e., certain classes of felonies or misdemeanors).

    • If you discover that an applicant has a criminal history, obtain additional information so that you can make an informed decision regarding the possible relationship of the crime to the position sought.  If you are hiring someone as a bank teller, it might not be reasonable to deny employment based on a single DUI conviction from 1985.  On the other hand, if the conviction was for embezzlement from a prior employer during 2011, you may have a legitimate basis for denying employment.