An Increase in Employee Background Checks Strains an Already Weak (Flint)


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Copyright © 2007-2014
Privacy Rights Clearinghouse
Posted May 24, 2007

By Leslie Flint
J.D., 2007, University of San Diego School of Law;
B.A., 2001, University of Maryland at College Park.

TABLE OF CONTENTS

I. Introduction

II.  Federal and State Law
A. The Fair Credit Reporting Act
B. California’s Law: The Investigative Consumer Reporting Agencies Act

III.  Policy Concerns
A.  Avoiding Negligent Hiring Lawsuits
B.  Avoiding Recidivism

IV.  Recommendation

 

I.  Introduction
            Employee background checks are no longer reserved for applicants to the Central Intelligence Agency.  Federal and state law requires that certain employers, including those in aviation, banking and healthcare obtain background checks on their employees.1  Even when not mandated by law, many employers are performing background checks on applicants.  One survey shows that 82% of employers conducted applicant background checks in 2003, compared to 66% in 1996.2  These background checks are often obtained from commercial data brokers, who collect information from public records.  

One explanation for this increase is post-9/11 security concerns.  However, even clerks at hardware stores are subject to background checks.3  Aside from terrorism, other more common incentives may explain the increase in background checks.  Technology has made background checks cheaper and easier to get than ever before.4 5  In response to this demand, there are now thousands of background check companies, many of which offer reports for as little as 20 dollars.  The National Association of Professional Background Screeners lists over 100 companies in California. (www.napbs.com)   This increased utilization of background checks means that any problems will have a wider significance.

Two easily identifiable problems with the increased use of background checks are the potential for errors and past mistakes haunting people for far too long.  But, in addition to these problems, there are societal concerns about lack of privacy, ceding judgment to a computer database, and potential over-reliance on a person’s past behavior.  For example, background check companies tout statistics showing that resumes are often inaccurate, with some studies showing that 95% of students would lie to get a job.6

Quincy Troupe, a literature professor at the University of California at San Diego, was one of the 95% who would lie to get a job.  Mr. Troupe falsely said that he obtained a bachelor’s degree from Grambling College in 1963.  A prolific and acclaimed poet, Mr. Troupe had worked as a teacher for three decades when his lie was discovered.  In 2003, the Governor of California nominated Mr. Troupe to be the official poet laureate of the state.  Poet laureate appointees are subject to background checks and this requirement proved fatal to Mr. Troupe’s career.7 

Unfortunately for Mr. Troupe, his experience is an example of the deceptively black and white nature of background checks.  Despite society’s appreciation of Mr. Troupe’s talents, a black and white printout was allowed to be the ultimate judge.  The computer printout is unable to ascertain if a college degree is important to a poet’s success.  Or as a teacher.  The printout cannot tell if Mr. Troupe is a serial liar.  A threat to poet laureates everywhere.  Before Mr. Troupe’s background check, society was confident that Mr. Troupe was a first-rate teacher and poet.  Employment background checks are used in a variety of situations.  In some cases the law requires that an employer hire only people who pass a background check. In other situations, employers have the flexibility to consider mitigating factors, such as experience and success, when evaluating a background check.  

In Part II, this paper will review the federal law applicable to employee background checks.  California is one of 27 states with laws that further restrict an employer’s use of background checks.  California’s law will be examined for ways in which it exceeds the protections offered by federal law.  As noted, federal and state laws govern background checks with respect to particularly sensitive jobs, such as childcare.  These statutes specify the required duty of care by the employer and as these laws are relatively straightforward, this paper will not be addressing these types of employment.  Rather, this paper will focus on the use of background checks when not specifically required by law.   In Part III, this paper will explore the dueling policy concerns behind the use of background checks.  Employers have a compelling interest in a safe work environment and in avoiding lawsuits.  Also compelling is society’s interest in avoiding recidivism and unemployment.  Finally, in Part IV suggestions will be made for a comprehensive law that addresses the dueling policy concerns and attempts to remedy problems that have become apparent through the increased utilization of background checks.

II.  Federal and State Law

A. The Fair Credit Reporting Act

            The Fair Credit Reporting Act (FCRA) was passed by Congress in 1972 to promote accuracy, fairness, and privacy of personal information assembled by consumer reporting agencies.8 The FCRA regulates how employers can use consumer reports, which are defined as reports containing information pertaining to an individual’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living.9  

The FCRA was amended in 2003 by the Fair and Accurate Credit Transactions Act (The FACT Act).  The FACT Act allows employers to investigate misconduct of current employees without giving the employee notice or obtaining consent.10  Most applicant background checks fall under the FCRA’s consumer report category and not the investigative consumer report addressed by the FACT Act.11  However, both the FACT Act and the FCRA only apply in situations where an employer uses a third party to perform the background check. 

If an employer does use a third-party to conduct a background check, the FCRA requires that the employer notify the applicant and obtain consent for the background check.  Further, the FCRA requires that if an adverse decision is made based on the background check, the employer must provide the applicant with notice of the adverse action and the name, address, and telephone number of the consumer reporting agency making the report.12  The employer is also required to give an employee a copy of the report and information on how to dispute the contents of the report. 

The FCRA offers some limitations on what can be included in a background check. Bankruptcies must be removed from the report after 10 years. Civil suits, civil judgments, paid tax liens, accounts placed for collection, and records of arrest can only appear for 7 years.  However, criminal convictions can be reported indefinitely.  Prior to 1998, the FCRA only allowed criminal convictions to be reported for 7 years from the time of disposition or release.         
The FCRA has two significant problems.  One, it does not have an adequate procedure to ensure that background checks are accurate and that the applicant understands the process.  An applicant only receives a copy of the background check if the employer admits that something unfavorable is contained in the report.  For example, an employer may obtain a background check that shows a drug conviction and while the employer does not want that type of person around, the employer is concerned that admitting that preference may be illegal.  To avoid any possible illegality, the employer may choose to tell the applicant that another person was better qualified.  In this situation the applicant will not understand that it was the background check that cost him the job.  When an applicant is unaware that a background check is costing him a job, the harmful effects of any errors on the report are magnified.  In the above example, if the drug conviction is erroneous, the route for correcting the error will be thwarted by the applicant’s ignorance of the process.
        
The FCRA provides that consumer reporting agencies who furnish employment background checks must ensure accuracy by either (1) at the time the report is given to the employer, the agency can inform the applicant that a background check is being sent to the employer, or (2) maintain strict procedures designed to insure that whenever public record information is reported which is likely to have an adverse effect on a consumer's ability to obtain employment, it is complete and up to date.13  The first option of simultaneous notice is easily achieved, but does little to help the applicant correct errors before the employer views the background check. Significantly, the FCRA has no provision instructing an employer to re-evaluate its decision in the event that there are errors on the background check.

Errors on background checks can occur in many different ways, but in some cases there is an inconsistency that indicates that the information should be verified.  The author has heard dozens of heartbreaking stories of errors on background checks while working for the Privacy Rights Clearinghouse, a consumer advocacy and education non-profit organization.  Danielle’s14story is illustrative of the harmful effect background checks errors have on employees.  Danielle applied for a job as a Senior Research Associate at a pharmaceutical company.  Prior to formally offering Danielle the job, the employer asked Danielle is she had a criminal record.  Danielle told the employer that she was convicted of a misdemeanor, criminal mischief.  The employer offered Danielle the job, stating that they were only concerned with felony convictions.  Two weeks after Danielle started working she was fired because of her background check.  (See Figure 1).
Figure 1
Figure 1 – An excerpt from Danielle’s background check

The background check lists three charges: (1) Misdemeanor-Harassment, (2) Felony-Criminal Mischief $500-15,000, and (3) Felony-Arson 2 – Damages of $100 of more.  According to the background check, the applicant was convicted of Felony-Arson 2.  However, the sentence is listed as $159 in fees and 1 year of probation.  The sentence and the purported conviction appear inconsistent and, in fact, they are.  Had the background check company investigated this inconsistency it would have learned that the listed conviction was incorrect. 

Danielle’s court records show that the she was charged with three offenses: (1) Criminal Mischief-$500-$15,000 (2) Harassment-Telephone-Threat/Obscene, and (3) Criminal Mischief-Under $100.  The court records indicate that the she was convicted of the third charge, Criminal Mischief-Under $100.   (See Figure 2).

Figure 2

Figure 2 – An excerpt from Danielle’s court records.

Under the FCRA, Danielle’s employer was required to tell her that she was being fired due to the information in the background check and to provide her with information on how to contact the background check company.  Danielle contacted the background check company and after an investigation the errors were corrected.  The FCRA does not require Danielle’s employer to re-hire her and the employer did not. 

Background check companies say that their error rate is very small.  Although the rate may be statistically small that is not to say that errors have an effect on a small number of job applicants.  ChoicePoint, one of the larger database companies, performed nine million background checks in 2005.15  A company spokesperson pointed out that only one out of every thousand background checks has led to a consumer disputing or complaining about the information provided, and only one of a thousand disputes results in a change.16

ChoicePoint’s methodology for determining its error rate illustrates the FCRA’s shortcomings with respect to applicants’ awareness and understanding of the process.  ChoicePoint based its error rate on the number of complaints from job applicants.  Although the FCRA instructs employers to notify applicants when an adverse action is being taken based on a background check, there is no enforcement of this provision.  An employer can easily tell an applicant that someone else was better qualified or a better fit with the company.   In those instances, the applicant may not suspect that the background check contained errors.   Other research, based on people who ordered their reports directly from ChoicePoint before applying for a job, indicates that ChoicePoint’s error rate is closer to 35 percent.17  Under the current law, the only way an applicant can ensure that an employer is not secretly basing its adverse decision on a background check would be to initiate a lawsuit.  A simpler solution is to allow the applicant time to review the report for errors before it is given to the employer. 

Secondly, the FCRA does not consider the unfair and potentially discriminatory effect of allowing arrests not leading to convictions to be reported.  Allowing arrests not resulting in convictions to be reported is unacceptable in a system where you are presumed innocent until proven guilty.  The Equal Employment Opportunity Commission (EEOC) states that

While a conviction record constitutes reliable evidence that a person engaged in the conduct alleged (i.e., convictions require proof “beyond a reasonable doubt”), an arrest without a conviction does not establish that a person actually engaged in misconduct.  Thus, when a policy or practice of rejecting applicants based on arrest records has a disparate impact on a protected class, the arrest records must not only be related to the job at issue, but the employer must also evaluate whether the applicant or employee actually engaged in the misconduct. It can do this by giving the person the opportunity to explain and by making follow-up inquiries necessary to evaluate his/her credibility.18

The EEOC does not go far enough in discouraging the use of arrest records.  It may seem quaint to point out, but the Sixth Amendment to the Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Although an employer’s evaluation of whether the applicant actually engaged in the misconduct is not tantamount to a criminal prosecution, surely the Sixth Amendment does not stand for the proposition that an employer can judge an applicant guilty of a crime and thereby deny employment.  The EEOC is correct in noting that inquiries into arrests not leading to convictions may as unfairly prejudices minorities.  According to the Federal Bureau of Investigation’s 2005 Crime in the United States report, 69.8 percent of all persons arrested were white and 27.8 percent were black.  However, African-Americans only represent 12 percent of the population, whereas Caucasians represent 74.7 percent of the population.19  Although an employer’s policy not to hire applicants who have been arrested may violate federal discrimination law, the principle that people deserve a fair trial judged by your peers should not be limited to protected classes. 

B. California’s Law: The Investigative Consumer Reporting Agencies Act

           
The FCRA states that it does not exempt employers from complying with state laws governing background checks.20 California’s Investigative Consumer Reporting Agencies Act (ICRAA) offers employees more protections than the federal FCRA.  The ICRAA defines consumer reports similarly to the FCRA but it also applies to background checks obtained through any means, as opposed to the FCRA’s limitation to third-party background checks.21  Under the ICRAA, if an employer conducts an internal investigation of an applicant involving public records, such as arrests and convictions, the employer must provide a copy of the public record to the applicant.  The copy must be provided within seven days, unless the applicant waived this right by checking a box on the application form.22

California law also prohibits employers from inquiring about arrests not leading to convictions, drug convictions dismissed by successful completion of a drug diversion program, misdemeanor convictions where probation has been successfully completed, convictions whose disposition or release is more than seven years old, and expunged, sealed or purged convictions.23

Some scholars argue that California’s law is ineffective because of the nature of large consumer databases.  ChoicePoint maintains a database with 19 billion records of individuals and businesses.24  In contrast, California has no central state criminal records depository.  Only five out of fifty-eight counties in California allow ChoicePoint to access criminal records electronically.  Consequently, ChoicePoint sends “runners” to the other fifty-three counties to manually retrieve the information.  The lack of electronic access to criminal records means that the information ChoicePoint provides in a background check may not be up-to-date.  For example, if a runner pulls John Doe’s conviction record and enters it into ChoicePoint’s database on Monday and John Doe has the record expunged on Tuesday, any background check performed on John Doe past Tuesday will be inaccurate.             

California is one of eleven states that prohibit the reporting of convictions whose disposition or release is more than seven years old.  Colorado, Kansas, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New Mexico, New York, and Washington all have similar laws.  Additionally, Massachusetts prohibits the reporting of misdemeanors whose disposition or release is more than 5 years and does not allow the reporting of first conviction misdemeanors for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace.  Additionally, more than two-thirds of the states have a law prohibiting the arbitrary denial of public employment solely on grounds of a criminal conviction.25  Some critics note that these statutes are ineffective because they lack enforcement mechanisms.26 However, California’s law is integrated into the Fair Employment and Housing Act (FEHA).  The significance of this integration is that in California there is a department charged with enforcing FEHA.  Additionally, California’s law allows for attorney’s fees and the cost of the lawsuit to be awarded if the plaintiff prevails.27 It is unclear whether any of these factors bolster the effectiveness of California’s law, as there has been scant litigation on the subject.


III.  Policy Concerns


Give a man a fish and he will eat for a day. Teach a man to fish and he will eat for a lifetime. Teach a man to create an artificial shortage of fish and he will eat steak. ~Jay Leno

Proponents of background checks use large jury awards in negligent hiring cases to suggest that background checks are necessary.  According to Jason Morris, chair of the National Association of Professional Background Screeners, the average verdict in a negligent hiring action is $2 million.28  Legitimate policy concerns underlie the use of background checks, but just as ex-offender advocates would lose credibility if they suggested that ex-embezzlers would make terrific CEOs, advocates of background checks lose credibility when they suggest that failing to uncover a marijuana conviction will cost employers millions.  A careful exploration of both the interest in avoiding negligent hiring lawsuits and the interest in preventing recidivism reveals that the dueling concerns can be reconciled.  

A.  Avoiding Negligent Hiring Lawsuits

           
A woman who was brutally attacked by a furniture deliveryman was awarded $1,900,000 in compensatory damages, and $600,000 punitive damages by a Florida jury in a negligent hiring lawsuit.29  The deliveryman had a juvenile record for armed robbery and burglary in 1976; adult records of arrest for assault and battery; a charge of aggravated battery in 1979; a conviction for battery involving cutting his former wife in the face with a knife; additional charges of battery on his wife in 1981; and voluntary hospitalization for psychiatric problems on two occasions, in 1979 and 1981, with a diagnosis of paranoid schizophrenia, including reported delusions of voices telling him to kill himself and to kill other people. He had been heavily using drugs preceding both periods of hospitalization. Further, he had been using cocaine intravenously for about a year prior to his attack on the plaintiff, and had been using heroin intravenously for about two months. In addition, his prior employer had fired him.  At the time of his arrest, the deliveryman had clearly visible "track marks" on both arms, indicating heavy intravenous drug use.30  His employer had failed to conduct a formal job interview, obtain references or require an employment application.31 

In discussing the appeal, the court defined the common law tort of negligent hiring as “grounded on the negligence of the defendant in knowingly keeping a dangerous servant on the premises which defendant knew or should have known was dangerous and incompetent and liable to do harm to the tenants.”32 In evaluating the employer’s negligence, the court stated that an employer’s responsibility to investigate an employee’s background is related to the type of work to be done by the employee.33 In considering the employer’s argument that it was not required to do an independent investigation because the job involved only incidental contacts with the public, the court said,

As to the duty to "independently investigate," we readily accept appellant's acknowledgment that this entails something other than a personal interview of the employee, obtaining an employment application, or evaluation based upon actual observation and experience with the employee. Consequently, to simply say that there was no legal duty on the part of the employer in this case to make an "independent" investigation does not mean that there was no duty to investigate before hiring [the deliveryman]. In this case, by [employer’s] own admission, there was no "independent investigation" of [deliveryman’s] fitness for employment as a deliveryman. Indeed, there was no "investigation" at all. [Employer] conducted no job interview, nor did it obtain a written employment application from [deliveryman], notwithstanding the fact that the company had on hand application forms which it generally used.”34

The $2 million dollar verdict was not based on the employer’s failure to purchase a background check. The employer paid $2 million dollars because it did not conduct any investigation. Perhaps purchasing a background check would have caused the employer not to hire the deliveryman, but the court’s reasoning rebuts the suggestion that purchasing a background check is necessary to prevent a negligent hiring lawsuit. The court suggests that the employer could have fulfilled its duty by conducting a job interview, checking references, and requiring a written employment application.

As the above case illustrates, an employer should take precautions to avoid both the harm to potential victims and the financial consequences of a negligent hiring claim. However, this is not to say an employer can prevent all harm or will be liable in every negligent hiring claim. To prevail on a negligent hiring claim the plaintiff must prove (1) that the employer negligently selected a person incapable of performing the job with which he or she was charged, and (2) that the employee's conduct was the proximate cause for the plaintiff's injuries, (3) through the employer's alleged negligence in hiring the employee.35 In evaluating the first prong, courts generally hold that an employer has a duty to conduct an independent investigation when an employee’s job duties will bring him or her into frequent contact with the public. 36

From the view of the employer, this three-prong test and its application may seem too vague to be reassuring. Using the above test, one Ohio court found an employer liable for not investigating the background of a truck driver, which would have revealed a history of illegal drug use. The truck driver assaulted and attempted to rape a customer while under the influence of crack cocaine. The court held that the employer should have known of the drug abuse.37 Importantly, the court did not hold that the employer should have known of the drug abuse because it could have purchased a background check that would have revealed this information, but rather because the employee had left his old job because of drug use. Had the employer made a phone call to check the employee’s references, the drug use would have been uncovered. This may seem frustrating to employers when many companies refuse to give information about old employees other than the dates of employment. However, in this case the employer did attempt to call the old employer and thus was unable to say, “I did call his old employer, but was only given the dates of employment.”

Thirty-one states have passed laws that encourage prior employers to offer their opinions of former employees by granting the employer immunity from civil liability so long as the opinions are not knowingly false or deliberately misleading.38

Also using the above three-prong test another Ohio court found an employer not liable for the hiring of a tile layer, who raped a nine-year old occupant of an apartment.39   A background check would have revealed a 20-year-old criminal history.  The court found that the employer has no duty to conduct a background check.  Further, the court held that even if the employer had known of the criminal history it was too remote in time to hold the employer liable. 
 
These decisions emphasize the importance of using old-fashioned judgments of character, such as contacting references, having personal conversations with employees, and observing their physical characteristics and demeanor.   In the case of the drug-abusing deliveryman, the employer could have known there was a problem by looking at the “track marks” on his arm.  In the case of the crack-using-truck driver, a call to his past employer would have revealed that he had been fired for drug use.  Notably, these decisions do not support the notion that if an employer had performed a background check, which revealed no criminal convictions, the employer would not be liable for failure to observe physical signs of drug use or call past employers. 
An employer whose employees will have substantial contact with the public can reduce the risk of negligent hiring claims by conducting background checks.  But, even if employers utilize background checks, they should not overlook other means of ascertaining whether an employee is suitable for his or her position.   Significantly, when Florida passed legislation describing what an employer needs to do to avoid negligent hiring lawsuits, paying $20 for a background check on the Internet was not an option. 

In 1999 Florida passed the Tort Reform Act of 1999 which provides employers with a defense to negligent hiring claims if they conduct effective pre-hiring background checks. The law applies to negligent hiring claims against employers based upon the commission of intentional torts by employees. “For purposes of a negligent hiring claim, the law creates a presumption that an employer exercised reasonable care in selecting an employee if the employer conducted a background investigation that did not reveal any information that reasonably demonstrated the unsuitability of the applicant for the particular work to be performed.40

The law specifies that in order to obtain the presumption of reasonable care the employer must (1) conduct a criminal background investigation on the applicant with the Florida Department of Law Enforcement; (2) make reasonable efforts to contact references and former employers of the applicant concerning the applicant’s suitability for employment; (3) require that the applicant complete a job application, which includes questions concerning whether the applicant has ever been convicted to a crime (including the time, date and penalty) and whether the applicant has ever been a defendant in a civil action for intentional tort (including the nature of the action and disposition); (4) obtain, with authorization from the applicant, a check of the driver's license record (if relevant to the work to be performed); and (5) interview the applicant.41 Notably, when an employer is required to conduct all five of the above steps, there is a greater chance that inconsistencies will be uncovered and that an employee will be given the opportunity to prove that he or she deserves a chance. 


B.  Avoiding Recidivism
Monsieur to a convict is a glass of water to a man dying of thirst at sea.
-Victor Hugo, Les Miserables

The goal of reintegrating ex-offenders into society is of increasing importance, because of the large number of ex-offenders.  Over the past three decades, the number of prison inmates has increased by more than 600 percent.42  Prison, once reserved for only the most despicable crimes, is now punishment for a wide range of crimes.43 For example, the adoption of mandatory sentencing laws has removed discretion from sentencing judges.  As a result, the chances of receiving a state prison term after being arrested for a drug offense rose by more than 500 percent between 1980 and 1992.44  One in every five Americans has a criminal history.45 Consequently, ex-offender status is a less precise definition of a person’s character and should require further inquiry.  Limited employment opportunities and earning potential are among the strongest predictors of a return to crime.46   Between 70 and 90 percent of the ex-offender population are unemployed.47 Within three years of release from prison, more than 66 percent of ex-offenders return to a life of crime.48  Thus, if ex-offenders are denied jobs solely based on their convictions, then the chances are higher that the person will return to crime.

The increased use of background checks may not only encourage ex-offenders to return to crime, it may also encourage crime in the first place.  Nearly 80 percent of states allow employers to base employment decision on arrests not leading to convictions.49  If you are unable to get a job after an arrest, there are only a few options left to obtain food, shelter and clothing.  Family or public welfare might provide for those needs; or the person will break the law in order to survive.  And when the person steals a loaf of bread, the employer will likely pat himself on the back for seeing the person’s true colors. 
One significant threat all ex-offenders face is the possibility that employers will put them into a single category and judge them by their status as ex-offenders as opposed to the offense they committed.  After a person is found guilty, the criminal justice system is supposed to impose a punishment that fits the crime.  However, in addition to their sentence many ex-offenders face the same collateral consequences no matter what crime they committed.  As background checks become commonplace for a wide variety of jobs, the correlation between ex-offender and unsuitability for the job becomes less significant.   Legislators can also fall victim to this generalization.  For example, in Pennsylvania, ex-offenders are barred from all healthcare jobs, including sweeping the floors at a hospital.50 However, some courts have found these generalized restrictions on the employment of ex-offenders unconstitutional.  An Alabama law excluding people convicted of a crime of force, violence, or moral turpitude from the state’s list of towing contractors was found by a federal court to be “totally irrational.”51

Another problem facing ex-offenders is the lack of assistance with reentry into society.  Many people assume that parole officers locate jobs for ex-offenders.  However, an ex-offender only receives a parole officer if he or she is released early.  In 2001, one-fifth of released prisoners were unsupervised.52 Additionally, sixteen states have abolished discretionary parole for all offenders.53 Without assistance in gaining reentry into society, ex-offenders face an increased likelihood of returning to crime if they are denied employment solely based on their criminal history.

IV.  Recommendations

The first step in drafting a comprehensive law on employee background checks is to separate background checks from other “consumer reports.”  In addition to regulating background checks, the FCRA also applies to credit reports, the marketing of financial information and all types of consumer reports, from insurance claim histories to tenant records.  Considering the increasingly diverse group of employers who utilize background checks, it will be impossible to draft a comprehensive law that lumps background checks in with other consumer reports.  

A comprehensive background check law must also balance the interests of employers with the interests of avoiding recidivism and unemployment.  Finally, measures must be in place to ensure that background checks are accurate and fair to the job applicant.  
One of the primary ways the law can balance the competing policy interests is to require that the employer consider whether a criminal conviction is related to the job skills required.  It is important to realize that the law only applies to initial hiring decisions.  Nothing in the law would prohibit an employer from firing an ex-offender if, once hired, the ex-offender proved to be unsuitable for the job.  However, a well-crafted law should not simply state that an employer should consider whether the conviction is related to the job.  The law should indicate the factors to be considered.  For example, New York law states that an employer should consider (1) the job skills and how they relate to the conviction, (2) the time that has elapsed since the criminal conviction, (3) the age of the person at the time of the crime, (4) the seriousness of the crime, (5) legitimate interests in protecting property and the public and business safety, and (6) evidence of rehabilitation provided by the applicant.54

Clear examples of an employer’s duty to investigate an applicant’s background can also diminish employers’ fears of negligent hiring lawsuits.  Florida’s law is a good example of a standard that considers database records, as well as former employers, references, and the applicant.  Requiring the employer to seek information from multiple sources reduces the risk of error and provides a greater opportunity for an applicant to explain past mistakes. 
A stricter law could prohibit employers from even asking about convictions.  Hawaiian law prohibits employers from asking about convictions until a conditional job offer has been made, and then the inquiry must be limited to convictions that have a rational relationship to the job.55  The law grants exemptions to employers in the federal government, the department of education and private schools.56  Additionally, employment relating to children, private investigators, apartment or condominium owners, the judiciary, and correctional facilities are exempt through other statutes, which specifically require background checks.57  However, this extreme protection of ex-offenders is problematic, because it does not stimulate transparency of the process for both parties. 

Conversely, advocates for ex-offenders may feel that a law requiring an employer to consider the relation of the conviction to the job skills required looks good on paper, but will prove to be useless.  One method for ensuring that employers do not consider convictions unrelated to the job skills required would be to prohibit inquiry into all convictions whose disposition is older than seven years.  This standard would effectively tell employers that these convictions are not related to the job.  While some may argue that a child molestation conviction is always relevant to a job related to children, separate laws govern those areas of employment where there is a special need for background checks.  Currently, separate laws require employers to conduct background checks in fields such as childcare, healthcare, banking, and aviation.  This proposed law would not negate these laws.  Further, the prohibition on inquiries into old convictions does not mean that the employer has no other options for determining whether the applicant is suited to the job.  The employer can still check references, call past employers, and interview the applicant. 

Another method of ensuring that the law is useful to ex-offenders is to allow for the recovery of attorney’s fees and the cost of a lawsuit.   Yet, this provision will only be effective if all applicants receive a copy of their background check.  Current law allows an applicant to see their background check only if an employer admits that they are taking an adverse action based on the background check.  Many employers may choose to say that another person was better qualified, rather than admit that a conviction influenced their decision.  Thus, attorney’s fees provisions are ineffective without an applicant’s access to their own background checks, because without this access applicants do not know when to seek legal representation.  The law must allow applicants to obtain a copy of their background check regardless of whether they are hired.

Additionally, allowing an applicant to obtain a copy of their background check is a simple way to reduce errors.  But in order for the applicant to have a chance to correct any errors, the applicant must receive a copy of the background check before it is given to the employer. 

Considering the prevalence of employee background checks, federal and state laws must be crafted to ensure that the law balances the interests of the employer with the interests of reducing recidivism and unemployment.  The law must also compensate for the reality that some background checks will have errors.  Finally, the background check process should not be kept secret from the applicant.


1. Florentino, Tonianne, Privacy in the Workplace. 788 PLI/Pat 551, 556 (2004).

2. Matejkovic, John E. and Matejkovic, Margaret E., Whom to Hire: Rampant Misrepresentations of Credentials Mandate the Prudent Employer Make Informed Hiring Decisions.  39 Creighton L. Rev. 827, 829.  (2006)..

3. Forest, Gregory A., Sealing the Record: Helping Rehabilitated First-Time Drug Offenders Get Jobs. 35 McGeorge L. Rev. 597 (2004).

4.Bloom, Elise M.; Schachter, Madeleine; and Steelman, Elliot H., Competing Interests in the Post 9-11 Workplace: The New Line Between Privacy and Safety. 29 Wm. Mitchell L. Rev. 897, 916 (2003).

5. Gerlach, Elizabeth, The Background Check Balancing Act: Protecting Applicants with Criminal Convictions While Encouraging Criminal Background Checks in Hiring.  8 U. Pa. J. Lab. & Emp. L. 981, 997 (2006).

6. Matejkovic, John E., 39 Creighton L. Rev. at 828.

7. Id. at 827.

8. Sotto, Lisa J. and McCarthy, Elizabeth M., Workplace Privacy in the U.S.: What Every Employer Should Know.  866 PLI/Pat 201, 206 (2006).

9. 15 U.S.C. § 1681a

10. Schachter, Victor and Swanson, Shawna, Workplace Privacy and Monitoring: New Developments Affecting the Rights of Employers and Employees.  866 PLI/Pat 135, 159-60 (2006).

11. Id. at 160.

12. Id. at 161.

13. 15 U.S.C. § 1681k

14. Name has been changed.

15. Liptak, Adam, Criminal Records Erased by Courts Live to Tell Tales.  New York Times. Section A.  October 17, 2006.

16. Id.

17. Barber, Grayson, Personal Information in Government Records: Protecting the Public Interest in Privacy.  25 St. Louis U. Pub. L. Rev. 63, 91 (2006).

18. EEOC Compliance Manual.  Section 15: Race and Color Discrimination.  Available at: http://www.eeoc.gov/policy/docs/race-color.html#VIB2conviction

19. Census Bureau, 2005 American Community Survey

20. See 15 U.S.C. § 1681t

21. Polsky, Jeffrey D., Workplace Privacy Laws Governing California Employers.  729 PLI/Lit 425. 441 (2005).

22. Id. At 442

23. Cal. Civ. Code § 1786.18; Cal. Lab. Code § 432.7.

24. Associated Press, ChoicePoint tries to clamp down.  March 8, 2005.

25. Love, Margaret Colgate, The Debt That Can Never Be Paid.  21-FALL Crim. Just. 16, 22 (2006).

26. Id. at 26.

27. Cal.Civ.Code § 1786.50

28. How to Ferret Out Instances of Resume Padding and Fraud. 06-6 Compensation & Benefits for L. Off. 1 (2006).


29. Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744, 748 (1991).


30. Id. at 749.

31. Id. at 748.


32. Id. at 750.

33. Id.

34. Id. at 751-52.

35. Morris, Mary Babb, Burden of proof; presumptions and inferences--Negligent hiring, supervision, or retention. 27 AM. JUR. 2D EMPLOYMENT RELATIONSHIP § 403 (2006).

36. See Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993); Williams v. Feather Sound, Inc., 386 So. 2d 1238 (Fla. Dist. Ct. App. 2d Dist. 1980); Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983); McLean v. Kirby Co. a Div of Scott Fetzer Co., 490 N.W.2d 229 (N.D. 1992); Carlsen v. Wackenhut Corp.,  73 Wash. App. 247 (Div. 2 1994).

37. Stephens v. A-Able Rents, Co., 101 Ohio App.3d 20, 27 (1995).

38. Workforce Management, State Laws Protect Employers Who Give Job References. Available at: http://www.workforce.com/archive/article/22/03/75.php

39. Peters v. Ashtabula Metropolitan Housing Authority, 89 Ohio App.3d 458 (1993).

40. Govan, Reginald G., Personnel, Investigative, and Health Records. 746 PLI/Lit 373, 388 (2006).

41. Id.

42.Pager, Devah, Double Jeopardy: Race, Crime, and Getting a Job. 2005 Wis. L. Rev. 617, 618 (2003).

43. Id.

44. Id. n. 3.

45. Geiger, Ben, The Case for Treating Ex-Offenders as a Suspect Class.  94 Cal. L. Rev. 1191, 1193 (2006).

46. Pager, Devah, 2005 Wis. L. Rev. at 619.

47. Geiger, Ben, 94 Cal. L. Rev. 1191 at 1197.

48. Id.

49. Geiger, Ben,  94 Cal. L. Rev. at 1200.

50. Saxonhouse, Elena, Unequal Protection, Comparing Former Felons’ Challenges to Disenfranchisement and Employment Discrimination. 56 Stan. L. Rev. 1597, 1612 (2004).

51. Id. at 1621.

52. Pinard, Michael, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals. 86 B. U. L. Rev. 623, n. 192 (2006).

53. Id. at n. 190.

54. N.Y. Correct. Law § 753

55. Haw. Rev. Stat. § 378-2.5

56. Haw. Rev. Stat. § 378-3(8-12)

57. Lau, Sheri-Ann S. L., Employment Discrimination Because of One’s Arrest and Court Record in Hawaii. 22 U. Haw. L. Rev. 709 (2000).

 

 


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