Background Checks Headline in 2014

Advertisement

Proskauer Law firm

In 2014, background checks were a hot topic in state and local legislatures.  Before this year, only 8 jurisdictions in the country had passed laws preventing private employers from asking job candidates about their criminal histories on an employment application (i.e., “banning the box”).  This year alone, however, 9 jurisdictions enacted ban-the-box laws covering private employers—Baltimore, Columbia (MO), Illinois, Montgomery County (MD), New Jersey, Prince George’s County (MD), Rochester (NY), San Francisco, and Washington D.C.  Louisville, Indianapolis, and Syracuse also banned the box for private employers with city contracts, while Delaware and Madison (WI) “encouraged” the same.

Advertisement

Man Sitting Alone in a Row of Empty Chairs

Several of these so-called “ban the box” laws also restricted the types of arrests or convictions about which employers may inquire or consider when hiring.  For example, the new San Francisco law bans inquiries about convictions that are more than seven (7) years old; the new Washington D.C. law prohibits questions about arrests and criminal accusations that are not pending or did not result in conviction; and New Jersey’s new law bars queries about expunged records.  Some of the new laws, such as those in San Francisco, Washington D.C., and Montgomery and Prince George’s Counties also imposed certain notice obligations on employers.

Advertisement

In addition to this state and local legislative activity, the U.S. Equal Employment Opportunity Commission (“EEOC”) continued to scrutinize employer background check procedures, though without much success.  In EEOC v. Kaplan Higher Education Corp., 748 F.3d 749 (6th Cir. 2014), the Sixth Circuit affirmed an award of summary judgment against the EEOC in its suit alleging that Kaplan’s use of credit checks disparately impacted African-American applicants in violation of Title VII of the Civil Rights Act of 1964.

Advertisement

Despite setbacks in litigation, the agency issued guidance on the use of background checks in hiring and personnel decisions. The brochure—Background Checks: What Employers Need to Know—advises employers on their existing legal obligations under federal nondiscrimination laws and the Fair Credit Reporting Act (“FCRA”) when obtaining, using, and disposing of background information.  The Federal Trade Commission also issued two brochures—Background Checks: What Job Applicants and Employees Should Know & Tips for Job Applicants and Employees—that walk applicants and employees through their rights under FCRA.

Though the primary focus on background checks this year concerned credit and criminal history, there were other noteworthy developments. The governors of California and New Jersey vetoed bills that would have greatly limited employers from considering an applicant’s unemployment status in hiring decisions.  And, Louisiana, New Hampshire, Oklahoma, Rhode Island, Tennessee, and Wisconsin prohibited employers from requesting or requiring prospective and current employees to provide their passwords to their personal social media accounts.

If trends are any guide, we expect more developments in 2015.  Stay tuned.

Advertisement

ARTICLE BY

OF

Published by

National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.