October 3 Tip of the Week

“Criminal Background Checks: Sword or Shield?”

At myHRcounsel we receive a lot of questions from employers regarding criminal background checks and whether the results of a criminal background check can serve as the basis for refusing to hire a prospective employee.  Over the years, the approach to criminal background checks has changed and the rules vary from state to state and locality to locality.  Some states have very clear laws regarding criminal background checks and how the results can be used in an employment decision; other states are less clear in their approach to criminal background checks and rely more on the guidance from the Equal Employment Opportunity Commission to govern employers’ use of these screening devices.  Ban the Box movements across the country typify the approach to criminal background checks and have made it illegal for employers to request information regarding an applicant’s criminal convictions during the hiring process.  Unfortunately for employers looking for guidance on how to use the results of a criminal background checks in hiring, the answer is typically “it depends” or “it is a facts and circumstances test.”  Open ended responses like these are frustrating, both for the attorneys who give them but, more importantly, for the human resources professionals who receive them. 

One clear approach to criminal background checks is evident from the guidance provided by the EEOC.  The EEOC has taken the position that relying on criminal background checks in employment decisions generally has a disparate impact on underserved and underrepresented members of the population who have been negatively impacted by bias and discrimination in policing and, therefore, can form the basis for a valid discrimination claim.  Here is a link to the EEOC’s webpage regarding the use of background checks.  The agency notes that the use of criminal background checks is not per se illegal, but if it has a disparate impact on a specific group or classification of individuals, then it denies equal employment opportunity to protected groups and is a violation of the law.  The EEOC has developed a number of factors and guidelines on when and how to use criminal conviction records and these rules are consistent with many of the state laws on the use of criminal records in employment.  Adopting a policy that follows this guidance would serve employers well in all areas of the country. 

There have been several cases over the years that have examined the use of criminal background checks in employment decision.  A review of these cases can provide some clarification and context for employers who seek to use the results of a criminal background check in an employment decision. 

Target:  In April 2018, Target entered into a settlement agreement to resolve a lawsuit filed by the NAACP Legal Defense and Education Fund alleging that the company’s criminal background check discriminated against African-American and Latino job applicants.  The lawsuit cited the examples of two prospective employees who were denied employment based on a misdemeanor conviction that was more than 20 years old and a felony drug-related conviction that was more than 10 years old.  In settling the case, Target agreed to review and revise its criminal background check policy and to limit the review of criminal backgrounds to the final stage of the hiring process so as to not prevent members of a protected class from being denied opportunities at the initial stages of the hiring process. 

Amazon:  In November 2018, Amazon was the subject of a discrimination complaint in Massachusetts alleging that six Black and Latino drivers were negatively impacted by Amazon’s criminal background check policy that was adopted in 2016.  Drivers who had been employed prior to the adoption of the criminal background check policy were terminated for old and minor offenses that were discovered as a result of the criminal background check.  The drivers impacted had been working for Amazon for six or more months and the decision to terminate them did not take into account the drivers’ job performance.  After receiving a right to sue letter from the EEOC, a lawsuit was filed in April 2020. The primary allegations in that suit, which seeks class action status, is that Amazon’s policy disparately impacted individuals who were members of a protected class, relied on convictions that were unrelated to the individuals’ job duties, occurred too far in the past to be relevant, and did not allow the affected individuals to provide any background information regarding the convictions.  This case is still pending. 

Dollar General:  In October 2019, Dollar General entered into a settlement agreement to resolve a lawsuit filed by the EEOC regarding the use of criminal background check results in employment decision.  The EEOC alleged that Dollar General used applicants’ criminal conviction histories to deny them employment with the company, that this practice disparately impacted Black applicants and conditional hires, was not job-related, and was not justified by business necessity.  In settling this case, Dollar General agreed to retain a Criminal Conviction History Consultant to review whether an individual who was conditionally offered a job and possessed a criminal conviction on his record should be denied employment as a result of that history.  Factors that the consultant was required to consider in making recommendation about the use of a criminal conviction history include:  the age of the conviction, the age of the individual at the time of the conviction, the type of conviction, whether the conviction involved conduct or behavior that was related to the job sought, the number and seriousness of the conviction, and whether the individual as a result of the conviction presented a danger to others. 

What can employers learn from these cases and settlements?  The use of criminal conviction records in employment decisions is a minefield – the proper use of criminal conviction records can avoid claims of negligent hiring and can assist in the maintenance of a safe and productive workplace, while the improper use of criminal conviction records can lead to claims of discrimination and costly lawsuits.   Employers who use criminal convictions as a factor in the decision to hire an individual must do so in a careful and considered fashion.  And, when using these histories, employers should give the affected individual the opportunity to explain the criminal conviction record and to provide information that demonstrates their rehabilitation.  Employers who use these criminal background checks should have a written policy that describes how and when these criminal histories will be used and must be consistent in the application of the policy.  Finally, employers who have these policies should review the impact of the policy and take action to review and, perhaps, revise the policy if it appears that certain groups of individuals are negatively affected by it.  MyHRcounsel can assist you in developing these policies and in determining when and how to use a criminal conviction record when making employment decisions.