As employers across the U.S. continue to grapple with the Equal Employment Opportunity Commissions updated guidance on the use of arrest and conviction records in the hiring process, two city council bills from Washington State and Washington D.C. aimed at helping ex-offenders reenter the workforce are causing some employers concern at the local level.
Last month, city councils in Seattle [PDF] and the District of Columbia proposed versions of re-entry bills, both of which are expected to be voted on by the end of the year.
Pam Devata, a partner in the Chicago office of Seyfarth Shaw, says that both proposals are emulating the EEOCs recommendation for employers to make an individualized assessment of applicants. In April, the commission stated that if an employer finds a conviction in a candidates criminal history, it should give the applicant a chance to explain why he or she shouldnt be excluded from consideration.
While there is no federal law that prohibits an employer from asking about arrest and conviction records, the EEOC has said that using such records as an absolute disqualification for employment could limit the employment opportunities of some groups protected under Title VII of the Civil Rights Act.
Several states, including Hawaii and Wisconsin, already limit prospective employers use of arrest and conviction records. The states have laws and rules ranging from prohibitions against employer questioning of applicants about arrests to restrictions on factoring conviction records into employment decisions.
A spokesperson for the EEOC declined to comment on the councils pending bills.
Part of the stated purpose of D.C.s Bill 19-889 is to create limited liability for employers who hire or retain returning citizens if the employer has taken certain steps to make a good-faith determination that hiring or retaining a returning citizen is favorable and to create a certificate of good standing, issued by the Department of Corrections, for qualifying returning citizens.
The Seattle bill goes a little further in its restrictions on employers, says Devata. It says that youre not supposed to consider an applicants criminal history until a conditional offer of employment is made she says. The only state that has made that part of a codified law is Hawaii.
Both bills, if passed, could create some problems for employers in the two localities.
Trying to prevent employee theft, fraud, and violence is the primary motivating factor for conducting background checks, says Devata. Employers are trying to do the right thing, but theyre also trying run a business, she says. They have to make sure that they keep their customers and their employees safe.
Where negligent hiring is concerned, Devata says theres a perception that the cases are rare, but notes: It doesnt matter if it happened once or 1,000 times.
Negligent hiring cases mean that something egregious happened in the workplace, she says. They can be very heinous, and the fact that it happened once, thats what employers are trying to prevent.
Both bills supporters say that creating less restrictive pathways to employment is necessary to cut down on recidivism. But Devata says that she has some concerns about what the D.C. version calls a certificate of good standing, which might be available for an ex-offender immediately upon release from incarceration. Somebody can actually get out of jail and get a certificate of good standing with no waiting period at all, she says, and they havent proven themselves in any way.
Devata says that a host of factors should be considered before determining eligibility for such certification. She points out that even the EEOCs individualized assessment guidance lists several examples of what an applicant might use to make a showing of fitness for a particular position. Those include presenting character references and evidence of rehabilitation efforts, such as education and job training.
Devata notes that although the certificate of good standing could be used to defend a negligent hiring claim should an incident arise in the scope of the ex-offenders employment, there is no language in the bill that goes so far as to insulate the employer from liability entirely.
Of the EEOCs guidance, Devata says: Its not statute and its not a regulation. But the EEOC has made it very clear that there are hundreds of charges that are currently pending and that this is one of their top priorities.
George Washington University Law School professor Jessica Steinberg was one of 26 witnesses who testified at a September 25 city council hearing on the D.C. bill. In an email to CorpCounsel.com, she said the legislation should be embraced by employers:
This bill protects employers who hire individuals with criminal records by ensuring that, if they have made a careful assessment in their hiring decisions, they will not later be subject to a negligent hiring suit based on the employee’s conduct . . . It promotes employment of persons with criminal records, thereby reducing the likelihood these individuals will re-offend, and it protects employers who make the decision to extend such offers of employment.
Steinberg would like to see the bill go even further in promoting those goals. Where a prospective employee has been arrested but not convicted of any crime, she would like to see an absolute bar on admitting that arrest record against the employer in any future negligent hiring lawsuit.
The current bill is a step in the right direction but does not create the absolute protection employers need.
See also: Employers Wrestle with EEOC Guidance on Criminal Checks, The National Law Journal, July 2012; and Welcome Guidance on Criminal Background Checks, The National Law Journal, May 2012.
