Proceed Cautiously on Excluding Applicants with Criminal Records

By Toni Vranjes December 30, 2014

For people with criminal records, the road to finding work has long been filled with roadblocks. Once they’ve left their prison cells behind, they often experience a new sense of isolation when there’s no reply after applying for jobs.

Now, though, more barriers to employment are crumbling.

This has occurred as Californians’ attitudes toward crime and punishment have shifted. Twenty years ago, voters in the state approved the tough “three strikes” sentencing law. In recent years, though, the overall mood has become less punitive, according to employment attorney Koray Bulut of Greenberg Traurig’s San Francisco office. During that time, the “ban-the-box” movement has emerged to fight discrimination against those with criminal records.

Employers need to be aware of these developments, along with other wide-ranging protections in California that restrict what employers can ask about criminal history. They also need to comply with federal guidance from the Equal Employment Opportunity Commission (EEOC), which tries to prevent companies from using arrest and conviction records in a discriminatory way.

A Civil-Rights Movement

According to estimates from the National Employment Law Project (NELP), about 70 million people in the United States have a criminal record. Activists are trying to gradually knock down the employment obstacles they face.

The “ban-the-box” movement is one part of their struggle for civil rights. “Ban-the-box” laws typically prohibit questions about conviction history on job applications. Instead, employers must wait until later in the hiring process to ask a candidate these questions. The aim is to give job seekers with criminal records the opportunity to make a good impression on an employer, before their criminal history is considered.

Over time, “ban-the-box” laws have spread to many parts of the country. Currently, 13 states and dozens of cities and counties have a “ban-the-box” law, according to NELP. In some places, these laws apply only to public employers; in others, they apply to both public and private employers.

In California, a statewide “ban-the-box” law went into effect in July. The law, AB 218, covers state and local government agencies. California also has a number of local “ban-the-box” ordinances, including a far-reaching one in San Francisco.

Under the new San Francisco law that took effect in August, certain private-sector employers aren’t allowed to ask about criminal background on the job application or during the initial interview. The city has been a leader in the movement; it passed a “ban-the-box” law covering public-sector employers nearly a decade ago.

And in November, Californians approved Proposition 47, which reclassifies certain nonviolent property and drug crimes as misdemeanors, rather than felonies. Proposition 47 is retroactive, enabling people who were convicted of these offenses to seek reduced sentences.

Meanwhile, based on the EEOC guidelines, companies that exclude candidates based on criminal history should ensure that the decision is “job related and consistent with business necessity.” Criminal-record exclusions have a disparate impact on minorities, according to data cited by the agency. In the United States, black and Hispanic individuals are arrested and incarcerated at levels disproportionate to their numbers in the general population. To combat the problem, the agency wants employers to consider relevance and individual circumstances when examining criminal history.

Walking a Tightrope

When hiring, companies face a balancing act, according to lawyers.

On one hand, they must avoid discriminating against those with criminal backgrounds. On the other hand, they’re nervous about potential negligent-hiring claims, Bulut said. If, for example, a new hire with a rape conviction were to assault an employee or customer, then the company could be sued for negligent hiring.

“Employers have to walk this tightrope,” Bulut said. To keep from falling off during this delicate maneuver, here are the many factors to consider:

Job Applications. Employers must comply with California’s “ban-the-box” laws, including AB 218 and any local ordinances. If a business has many locations around the state, it would make sense to have one uniform job application—with no questions about criminal history, Bulut said.

However, on job applications, some private employers ask certain questions about criminal background—along with other information such as age, gender and race, noted Phyllis Cheng, a Los Angeles employment attorney at DLA Piper. Then they separate that information from the rest of the application. This information isn’t sent to the hiring manager, so that it won’t affect the hiring decision, said Cheng, former director of the California Department of Fair Employment and Housing. Instead, it’s kept by human resources for statistical purposes only.

Although this type of criminal-records inquiry wouldn’t be included on the state of California job application because of AB 218, Cheng emphasized that this law doesn’t apply to private employers. Also, a business with operations in San Francisco, or another “ban-the-box” jurisdiction that covers private employers, should avoid asking about criminal history altogether.

Restrictions on Questions for Job Candidates. During the hiring process, companies need to know what they may legally ask job candidates. Extensive protections are provided by several sources, including the California Fair Employment and Housing Act (FEHA) and the California Labor Code. The goal is to limit the type of information employers can consider when making hiring decisions.

Under California law, employers generally aren’t permitted to ask questions about arrests or detentions that didn’t result in a conviction.

FEHA allows employers to ask job-related questions about convictions—except those that have been sealed, expunged or statutorily eradicated.

Under California Labor Code Section 432.7, employers generally are prohibited from asking about convictions that have been judicially dismissed or sealed. Businesses also may not request information about referrals to, and participation in, any pre-trial or post-trial diversion programs.

But there are exceptions in certain circumstances, Bulut noted. For instance, Section 432.7 excludes law enforcement. Also, health care facilities may ask applicants for jobs with regular access to patients to disclose an arrest under Section 290 of the Penal Code. In addition, they may ask applicants for jobs with access to drugs and medication to disclose an arrest covered by Section 11590 of the Health and Safety Code.

In addition, consumer-reporting agencies generally are prohibited from reporting convictions that are more than 7 years old.

Employers also should avoid any “associational discrimination,” Cheng said. Employers must not discriminate against candidates who are associated with someone with a criminal history, including a spouse, relative or friend.

Assessing Candidates with Criminal Records. Havinga uniform policy of “not hiring any felons” is one way to get in trouble with the EEOC, according to Bulut. “You need to make sure you don’t have a blanket policy of not hiring those with criminal backgrounds, or certain types of criminal convictions,” he emphasized.

If a job candidate has been convicted of a crime, examine if the offense is relevant to the job opening, lawyers say.

Certain job categories will require much scrutiny of criminal records, Cheng said, including jobs that involve access to confidential information or that involve public safety. If a security guard applicant had been convicted of a crime like larceny or criminal trespass, that likely would be relevant to the position, according to Cheng.

But a financial-fraud conviction of someone applying for a job mowing lawns at a golf course probably wouldn’t disqualify the candidate, in Bulut’s view.

For candidates with conviction records,several factors should be examined. The employer should analyze the type of conviction, how long ago the crime occurred and the job requirements. The company could designate one person to perform this analysis, or establish a committee to do so, Bulut said. The committee should include people who are savvy about the risks, like members of the legal or HR departments. It should not include the hiring manager, though, because the underlying idea is to be independent from the hiring process.

If applicants are rejected because of criminal background, the EEOC guidance calls on employers to give candidates an opportunity to show why they shouldn’t be excluded.

According to Bulut, the hiring manager should be informed that the applicant’s criminal record was considered and whether the candidate is eligible to receive a job offer. If the assessment determines that the applicant can be hired, but certain precautions need to be taken, that might be communicated to the hiring manager, he added.

Also, if the employer decides not to hire a candidate based on information obtained from a consumer-reporting agency, the company must comply with the terms of the Fair Credit Reporting Act.

Job Descriptions. It’s important for job descriptions to be detailed and accurate, attorneys say. However, be cautious in the wording.

Assuming it’s not a job like law enforcement or home health care that requires a clean record, employers should not predetermine which criminal convictions would preclude someone from a job, according to Bulut.

Similarly, Cheng said that job descriptions should not specify any types of convictions that would disqualify someone. Instead, the desired training, education, experience, work habits and other qualifications should be stated, so that “a reasonable applicant could infer that a background contrary to those prerequisites and desired qualifications would be undesirable,” she added.

If a candidate is excluded because of a conviction, and the EEOC later investigates, a precise job description could be helpful, Bulut said. The company could point to the job description, truthfully saying that the offense was relevant to the specific job requirements.

Handbooks and Training. Businesses also could gain protection from a handbook that describes workplace values, like having a safe or drug-free work site, according to Bulut. That could help explain why a company didn’t hire candidates with assault or drug convictions.

Even with this type of handbook, companies still need to examine each situation individually. If a criminal conviction has no reasonable bearing on eligibility for a job, an employer would be hard-pressed to reject a candidate on those grounds alone, according to Bulut. For example, if an applicant has a credit-card fraud conviction, that might not jibe with a company’s business-ethics values. But if the candidate is applying for a lawn-mowing job—and won’t have access to confidential customer information and won’t process payments—it’s hard to explain why that conviction would be disqualifying, he noted.

Meanwhile, to ensure that managers know the correct procedures for applicants with criminal records, companies should provide training, Bulut said.

Looking Ahead

Bulut expects that California will enact a statewide law that expands “ban-the-box” requirements to private employers. “My guess is that California will get there pretty soon,” he predicted.

That’s one of the steps that the group Legal Services for Prisoners with Children is advocating. For a decade, the group has been campaigning for “ban-the-box” laws, and it hopes the movement will spread to every part of the nation.

Jesse Stout, policy director for the San Francisco-based group, said that pervasive social stigma is a major challenge faced by job seekers with conviction histories. In an e-mail, he noted that the organization avoids the phrases “criminal histories” and “criminal records,” because “we believe they reinforce this stigma by judging a person’s whole life based on their single worst mistake.” In his view, “more expansive ‘ban-the-box’ policies are needed to cover all employment and housing, not just public employment.”

Toni Vranjes is a freelance business writer in San Pedro, Calif.



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