United States: The Deceptive Complexity Of Criminal Background Checks

In order to conduct a compliant criminal background check, employers ordinarily must comply not only with the federal Fair Credit Reporting (FCRA) Act, but also state and local laws. This includes not only ban the box laws, but also laws that impose additional restrictions and requirements beyond when a criminal background check can occur.

Not to be forgotten is EEOC Guidance on criminal background checks. Do not dismiss it as mere guidance. Much of it incorporates what the courts already have said.

Here are some issues employers must consider. I have used the FCRA as a framework for the discussion.

One: the first step under the FCRA is an authorization. Among other things:

  1. This must be a separate document and cannot be part of the application for employment.
  2. It cannot include a waiver of claims.
  3. In California, there is a different authorization under state law.

Two: the second step under the FCRA is the pre-adverse action notice. Among other things:

  1. Per se rules that result in preliminary disqualification are per se dangerous. In addition to the EEOC, many states and local jurisdictions require that certain factors go into the analysis. Such states include New York and Pennsylvania and New York City and Philadelphia go even further than their respective state laws.
  2. Certain factors cannot be considered in deciding whether a conviction is disqualifying. New rules have gone into effect in 2018 in, among other locations, California and Massachusetts.
  3. The FCRA Notice of Consumer Rights that must accompany the pre-adverse action notice recently has been changed to address freezing credit. And, some states, such as New Jersey, have their own notice which must be given, too.

Three: under the FCRA, the final step is the adverse action notice. In some jurisdictions, the adverse action notice must do more than inform the individual of the final decision, for example:

  1. In California, for example, individuals must be told they have the opportunity to appeal to the California Department of Employment and Fair Housing.
  2. In Philadelphia, there is effectively a repeat of the pre-adverse action step—individuals must be given the opportunity to challenge with the employer (not an appeal to City) the employer's disqualification finding.

This short summary includes only but a few of the minefields in criminal background checks. Employers must consider a patchwork of federal, state and local laws that is deceptively complex, a particular challenge for multi-state employers. Don't go it alone.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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