By Michael Fleischer, Jean Wilson, and Barry Miller

Synopsis: Massachusetts Attorney General investigates 70 employers (both large and small – across all industries), citing 21 of them for violating the state’s “ban the box” law, which prohibits most businesses from asking about job candidates’ criminal backgrounds on initial employment applications.

Last week, Massachusetts Attorney General Maura Healy announced that her office conducted an investigation into the employment applications of more than 70 Boston-area businesses to determine if they violated the Commonwealth’s “ban the box” law. That law prohibits most employers from asking job applicants about their criminal history on initial applications, subject to limited exceptions. The employers investigated ranged from a restaurant chain to a skin care company to a book store.

The Attorney General entered into agreements with four large employers that have multiple locations in Massachusetts. In conjunction with those agreements, three of the companies were fined $5,000 each, and all were required to alter their application process to comply with the law’s requirements. The Attorney General also sent warning letters to an additional 17 employers, noting that they must take immediate steps to comply with Massachusetts law, and remove questions on their initial job applications that ask questions about applicants’ criminal histories. The improper questions included whether applicants have been convicted of violating the law, whether they had been convicted of a crime or offense other than a minor traffic violation, and if they have ever been convicted of a felony.

The Attorney General’s announcement of this enforcement activity comes on the heels of the Commonwealth’s recent passage of a criminal justice reform bill that becomes effective on October 13, 2018, and further restricts the questions that an employer may ask about an applicant’s criminal history following an initial employment application.

The Attorney General stated that the investigation was part of a larger, ongoing effort by her office to help educate businesses about the law, and to ensure that an individual’s criminal history is not used improperly to deny access to employment. This serves as a reminder to employers to review their hiring-related documents to ensure compliance with evolving legal requirements. Even if applicants do not complain about violations or assert legal claims, the Attorney General is engaged in proactive efforts to make sure that employers in the Commonwealth comply.

If you would like further information, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Background Screening Compliance & Litigation Team.

 

By: Jennifer Mora, Jean Wilson and Barry Miller

Synopsis: Effective October 13, 2018, Massachusetts employers will no longer be permitted to inquire about certain misdemeanor convictions and sealed or expunged records for employment purposes.

Almost ten years ago, Massachusetts became the second state, following Hawaii, to enact a “ban-the-box” law, so-called because they require employers to remove from job applications any question that asks a job applicant to self-disclose their criminal history. Instead, employers must wait until later in the hiring process to do so, unless the employer is prohibited by law from employing criminal offenders in the position at issue. Since that time, the ban-the-box wave has spread across the nation, with laws most recently enacted in Washington (discussed here) and California (discussed here).

In addition to the ban-the-box law, Massachusetts’ anti-discrimination law also contained provisions that restricted “what” employers may inquire about, including:

  • Any arrest, detention or disposition that did not result in a conviction;
  • A first offense for the following misdemeanors: disturbance of the peace; drunkenness; simple assault; affray; minor traffic violations; and speeding; and
  • Any misdemeanor conviction where the date of the conviction, or the completion of any period of incarceration resulting from the conviction, occurred more than five years prior to the date of the employment application, unless the person was convicted of any crime during that same five-year period.

On April 13, 2018, Governor Charlie Baker signed a criminal justice reform bill, which changed existing law in several respects. Importantly, the amendment reduced the five-year period for inquiring about misdemeanors to three years, which means that employers now may not ask about (whether orally or in writing) any misdemeanor conviction where the date of the conviction, or the completion of any period of incarceration resulting from the conviction, occurred more than three years prior to the date of the employment application, unless the person was convicted of another crime within the three years preceding the inquiry. Moreover, in addition to being prohibited from asking about sealed records, employers may not ask about a criminal record that has been expunged.

In addition, any form used by an employer that seeks information about an applicant’s criminal history must include the following statement about expunged records, in addition to the statement already required concerning sealed records:

“An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”

In addition, the criminal justice reform bill lowers the number of years before an individual can seek to have a criminal record sealed or expunged. Ultimately, this means that employers will have less access to criminal history information in making employment decisions. In response to employers’ concerns about being held liable for negligent hiring or retention based on criminal history to which they no longer had access, the legislature included a provision in the bill that incorporates presumptions based on employers’ more limited access to such information. Employers will be presumed not to have notice (or the ability to know) about (i) records that have been sealed or expunged, (ii) records about which employers may not inquire under the anti-discrimination law, or (iii) crimes that the Massachusetts Department of Criminal Justice Information Services cannot lawfully disclose to an employer.

Massachusetts employers, and nationwide employers that hire in the state, should immediately review their job applications to ensure they are not inquiring about criminal history information too early in the process. They also should consider reviewing and modifying any pre-hire policies and forms to ensure they are not inquiring about off-limits information and that any written question to applicants that inquires about criminal history contain the required language. Employers in all jurisdictions should stay abreast of ongoing developments in this evolving area of the law.

By Brent I. Clark, James L. Curtis, Pamela Q. Devata, and Craig B. Simonsen

Seyfarth Synopsis: Going forward, ATF’s new rule on applications by a trust or legal entity to make or transfer NFA firearms, requires that they be submitted on new forms — including background checks.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Final Rule 41F (41F Rule), Machineguns, Destructive Devices, and Certain Other Firearms: Background Checks for Responsible Persons of a Trust or Legal Entity With Respect To Making or Transferring a Firearm, becomes effective on July 13, 2016. 81 Fed. Reg. 2658 (January 15, 2016).

The 41F Rule requires that after July 12, 2016, all applications by a trust or legal entity to make or transfer National Firearms Act (NFA) firearms must be submitted on the new Form 1, Form 4, or Form 5, and a Form 5320.23 must be completed by each responsible person of a trust or legal entity.

Under the 41F Rule, the identification and background check requirements will apply equally to individuals, trusts, and legal entities. The rules clarify that the term ‘‘responsible person’’ for a trust or legal entity includes those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity. In the case of a trust, those with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of a trust.

Examples of who may be considered a “responsible person” of a trust or legal entity include:

  • Settlors/Grantors
  • Trustees
  • Partners
  • Members
  • Officers
  • Board members
  • Owners
  • Beneficiaries – if they have the capability to exercise any of the powers or authorities as listed above.

The ATF has provided a corresponding General 41F Questions and Answers, along with a reference webpage that includes links to copies of required application forms and a Responsible Person Questionnaire.

The ATF indicates that all applications “must be mailed” to: NFA Branch, P.O. Box 530298, Atlanta, GA 30353-0298, (304) 616-4500.

For more information on this or any related topics please contact the authors, your favorite Seyfarth attorney, or any member of the Background Screening Compliance & Litigation Team or the OSHA Compliance, Enforcement & Litigation Team.

By Dawn Reddy Solowey and Ariel Cudkowicz

It’s the decision the employment bar has been waiting for: on June 1, 2015, in a 8-1 ruling, the U.S. Supreme Court sided with the EEOC in the religious discrimination case of EEOC v. Abercrombie & Fitch Stores, Inc., which we’ve blogged about before.

Headlines

Justice Scalia — despite having expressed some affinity for Abercrombie’s position at oral argument — wrote the majority opinion.

The Court recognized that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that could be accommodated without undue hardship.  The Court then framed the question presented as “whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.”

The Court rejected Abercrombie’s argument that an applicant cannot show disparate treatment without first showing that the employer had “actual knowledge” of the applicant’s need for accommodation.  Instead, the Court held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

The bottom line?  The Court held that “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

The Facts

Teenager Samantha Elauf, a Muslim who wore a headscarf for religious reasons, applied for a sales floor position in an Abercrombie store.  At the job interview, to which she wore the headscarf, Ms. Elauf said nothing about the fact that she was Muslim.  In the interview, she did not bring up the headscarf, or say that she wore it for religious reasons, that she felt a religious obligation to do so, or that she would need an accommodation from the retailer’s “Look Policy.”  But her interviewer assumed that Ms. Elauf was Muslim, and wore the head-covering for religious reasons and that influenced the company’s decision not to hire her.

The Courts Below

The district court granted summary judgment for the EEOC but the Tenth Circuit reversed and granted summary judgment to Abercrombie.  The Tenth Circuit held that the burden is on the applicant to advise the employer of a religious practice that conflicts with a job requirement, because the applicant is uniquely qualified to know those personal religious beliefs and whether an accommodation is necessary.  The appeals court rejected the EEOC’s argument that the employer has a duty to attempt reasonable accommodation when the employer has notice of the conflict from any source.

The Supreme Court’s Analysis

In reaching its holding that an applicant need only show that his need for accommodation was a motivating factor in the employer’s decision, the Court relied primarily on an analysis of Title VII’s text.

The Court reasoned that Title VII’s disparate-treatment provision prohibits an employer from using an applicant’s religious practice as a motivating factor in failing to hire the applicant.  The Court noted that Title VII “does not impose a knowledge requirement,” and declined “to add words to the law.”  Instead, the Court reasoned that the statute’s “intentional discrimination provision prohibits certain motives,” regardless of the employer’s knowledge.

In distinguishing between motive and knowledge, the Court held that an employer who had actual knowledge of the applicant’s need for a religious accommodation, but did not have that as a motive for refusing to hire the applicant, would not violate Title VII.  By contrast, an employer whose motive in refusing to hire is the desire to avoid an accommodation — even if based on “no more than an unsubstantiated suspicion that accommodation would be needed”– may violate Title VII.

The Court acknowledged that if the applicant requested an accommodation, or the employer was certain that the applicant followed a practice that would require accommodation, it may be easier to infer motive, but held that neither is required for liability.

But the Court buried an important caveat in a footnote, declining to reach the question of whether the motive requirement can be met without a showing that the “employer at least suspects that the practice in question is a religious practice.”  The Court ducked the question because it was undisputed here that Abercrombie at least suspected that Ms. Elauf wore the hijab for religious reasons.

Sidestepping Abercrombie’s concerns that without an actual knowledge requirement, employers will be forced to ask about religion, or engage in stereotyping, the Court offered an example that highlights the practical pitfalls for employers.  The Court posited an employer who thinks, but does not know for sure, that an applicant may be an orthodox Jew who will observe the Sabbath and avoid Saturday work.  In that case, the Court held, if the applicant actually required the accommodation, and the employer’s desire to avoid it was a motivating factor in not hiring the employee, the employer would violate Title VII.

The Court rejected Abercrombie’s defense that its “Look” policy was a neutral policy that could not be discriminatory, emphasizing that Title VII demands more than “mere neutrality with regard to religious practices.”  The Court also rejected Abercrombie’s position that a claim based on failure to accommodate an applicant’s religious practice must be raised as a disparate-impact, rather than a disparate-treatment, claim.

Concurrence & Dissent

Justice Alito concurred primarily to opine that he would hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason — the question the majority sidestepped.  Only Justice Thomas dissented, reasoning that “Mere application of a neutral policy cannot constitute intentional discrimination,” and therefore that the EEOC could not advance a disparate-treatment claim in this case.

What Should Employers Do Now?

There is still a lot of wisdom in the longstanding advice to employers to avoid asking applicants about religion, or making assumptions based on stereotypes.  But in light of this decision, an employer who has any reason to believe, or even suspect, that accommodation may be necessary—from any source—will need to consider engaging in an interactive process with the applicant.

Depending on the circumstances, that process may entail explaining to the applicant the relevant work rule, inquiring as to whether the applicant could comply with the rule or would require an accommodation, and analyzing whether any required accommodation is reasonable or would impose an undue hardship.

Employers should consult counsel who specializes in this area for guidance on how to meet the obligations imposed by the Court’s ruling while minimizing the risk of other claims, as well as ensuring compliance with state or local religious discrimination laws, which can vary from federal law.

Finally, employers should update their internal hiring practices training to ensure that hiring managers and interviewers are aware of best practices following the Supreme Court’s ruling.

By Sam Schwartz-Fenwick and Amanda Sonneborn

In last week’s oral argument on the constitutionality of same-sex marriage bans, Chief Justice Roberts asked the following question:

Counsel, I’m not sure it’s necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?

Whether the Court addresses this rationale in its decision is an open question that will not be known until the Court issues its decision. Nevertheless, it is worth considering the impact that a sex-discrimination rationale would have on employers and plan-sponsors.

Under Federal law, claims of sex discrimination against employers and plan sponsors arise under Title VII, not the Fourteenth Amendment of the Constitution. Title VII was passed pursuant to the Commerce Clause of Article 1, Section 8, Clause 3 of the U.S. Constitution.

Nonetheless, a ruling by the Court that in certain instances sexual orientation discrimination constitutes sex discrimination under the Constitution would likely lead many courts to employ this reasoning in analyzing claims under Title VII. Indeed, this rationale is already the official position of the EEOC and the Obama administration. The EEOC believes that LGBT employment discrimination is sex discrimination, because it sees both sexual orientation and transgender discrimination as impermissible forms of sex-stereotyping. Similarly, the EEOC argues that ERISA governed health plans that only provide spousal coverage to opposite sex spouses to be engaging in sex-discrimination.

A ruling that same-sex marriage bans constitute sex-discrimination could buoy these arguments. Courts might be more willing to view claims of Title VII discrimination by LGBT individuals, not as a new type of discrimination (i.e. sexual orientation or gender identity discrimination), but rather as sex discrimination.

While a sex-discrimination rationale could encourage certain courts to extend Title VII to LGBT individuals, a dispute would surely remain between jurists as to whether such a broad reading of Title VII is appropriate. After all, courts are much less willing to interpret the terms of a statute in the same broad manner in which they interpret the Constitution. Indeed, Title VII on its face does not reference LGBT discrimination, and it is clear that when this Act was passed in 1964, Congress did not intend to extend its protection to LGBT individuals. In addition, since the early 1990s every Congress has considered passing an LGBT non-discrimination law (ENDA). Each and every Congress has failed to pass ENDA. For Courts to extend protections to LGBT individuals when Congress has refused to do so would for many jurists constitute a grave overstep in the limited role of courts to interpret (not make) the law.

As is clear, the Supreme Court’s ruling in the upcoming gay-marriage decision may have a significant impact on employers and plan sponsors. Stay tuned for our update on this analysis once the opinion is issued, which will likely come near the end of June.

By Brian A. Wadsworth

Employers are well aware that the protections provided by 42 U.S.C. § 1981 extend to both United States citizens and permanent residents, colloquially referred to as “green card holders.”

Some employers, however, may be unaware that lawfully present aliens who are not green card holders may also be protected by § 1981. In Ruben Juarez v. the Northwestern Mutual Life Ins. Co., Inc., Civ. No. 14-cv-5107, Judge Katherine Forrest of the Southern District of New York recently held that a lawfully resident alien had a cognizable cause of action against a potential employer for its “US citizen and green card holder only” employment policy.

Plaintiff Ruben Juarez (“Juarez”), an alien legally authorized to work in the US, applied for a position with Defendant Northwestern Mutual Life Ins. Co. Inc. (“Northwestern Mutual”). During his interview, Juarez explained his status and noted that “he could legally work for Northwestern Mutual regardless of whether he was a citizen or had a visa.” Northwestern Mutual disagreed and informed Juarez after the interview that in order to be hired by Northwestern Mutual, a candidate had “to be a US citizen or have a green card.” Six months after his interview, Juarez filed a putative class action against Northwestern Mutual, alleging alienage discrimination in violation of § 1981.

Northwestern Mutual promptly filed a motion to dismiss for failure to state a claim. On November 14, 2014, Judge Forrest denied this motion. Northwestern Mutual argued that Juarez was denied employment because he did not possess a green card, not due to his citizenship. Thus, it could not have discriminated against him on the basis of alienage.

In rejecting this argument, Judge Forrest reasoned that the protection afforded by § 1981 extends to “all lawfully present aliens.” This conclusion was based on the statutory language. Namely, “[a]ll persons within the jurisdiction of the United States shall have the same right . . . .” Judge Forest also relied on “a long line of precedent interpreting the Equal Protection Clause.” This bevy of case law, as noted by Judge Forrest disallows discrimination on the basis of alienage.

Displeased with the finding, Northwestern Mutual sought to certify the Judge Forrest’s opinion for interlocutory appeal. On December 30, 2014, the Court granted Northwestern Mutual’s motion to certify the Court’s Opinion & Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) because the opinion “addresses a pure legal question of first impression and significant practical importance: whether a policy that expressly denies employment to lawfully present aliens without green cards runs afoul of § 1981.” On March 17, 2015, the Second Circuit determined that it would review the District Court’s interlocutory order.

The implications of Juarez, depending on its outcome, could be significant for employers. It is likely that many employers are not cognizant that a “US citizen or green card holder only” policy may be in violation of § 1981. If the Second Circuit uphold this decision, it could require employers to reanalyze their employment policies to ensure they are complying with the Juarez holding.

This decision may also place a burden on employers to remain current on immigration and work permit laws. To avoid improper hiring practices, an employer will need a thorough understanding of whether lawfully present aliens are indeed legally authorized to work in the US. It may also require employers to bolster their applicant review process.

Should the Second Circuit uphold Juarez, employers should review their employment application and hiring processes and policies. Employers should also be cognizant that providing employment exclusively to US citizens and green card holders may generate liability under § 1982.

If you have questions regarding this topic, please contact the author, or your Seyfarth attorney.

 

By Pamela Q. Devata, Cameron Smith, and Courtney S. Stieber

On April 16, 2015, the New York City Council passed Intro-261-A, a bill that would amend the New York City Human Rights Law to make it an unlawful discriminatory practice for an employer to use an individual’s consumer credit history in making employment decisions. In particular, the bill makes it unlawful for employers not just to use an applicant’s credit history, but also to request it for employment purposes. The bill’s protections extend beyond the hiring process to current employees by prohibiting employers from considering consumer credit history broadly with regard to “compensation, or the terms, conditions or privileges of employment.”

With this bill, New York City will become the twelfth jurisdiction in the country to prohibit employers from using credit checks to screen job applicants, joining California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, Washington, and the city of Chicago. See our prior posts on California, Colorado, Nevada, and Vermont’s laws.

The bill carves out the following exceptions, so that the law will not apply to:

–           employers required by state or federal law or regulations, or by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act to use an individual’s consumer credit history for employment purposes;

–           police officers, peace officers, or those in a position with law enforcement or investigative function at the department of investigation (or in certain positions subject to background investigation by the department of investigation);

–           positions requiring the employee to be bonded by City, state or federal law;

–           positions requiring the employee to possess a security clearance under federal or state law;

–           non-clerical positions having regular access to trade secrets, intelligence information or national security information;

–           positions having signatory authority over third party funds or assets valued at $10,000 or more, or positions that involve a fiduciary responsibility to the employer with authority to enter financial agreements on behalf of the employer for $10,000 or more;

–           positions that allow the employee to modify digital security systems protecting the employer or client’s networks or databases.

These exceptions are more narrow than legislation in other jurisdictions, which, by way of example, provide exceptions for managerial positions, financial institutions, or positions where the credit report is substantially related to the job.

Mayor Bill de Blasio is expected to sign the bill, and the law will be effective 120 days following enactment.

Remedies

By amending the New York City Human Rights Law, the bill’s prohibition on credit checks will apply to New York City employers of four or more individuals, and will be enforceable through the City Commission on Human Rights or by civil action, with the potential for attorneys’ fees and punitive damages. In addition, the New York City Human Rights Law uses a broader interpretation of “adverse action” than found under state or federal nondiscrimination laws.

Recommendations

Employers in New York City that use credit reports or information are well advised to evaluate and reassess their practices and procedures with respect to employment-related credit checks in anticipation of the law taking effect.

By: Christopher Lowe and Alnisa Bell

On Monday, Governor Chris Christie signed the Opportunity to Compete Act (A1999) into law, which is designed to restrict employers from asking about prior criminal convictions on job applications.  Christie enthusiastically hailed New Jersey as “a state that believes every life is precious” and stated, “everyone deserves a second chance . . . Today, we’re banning the box!”

The law, which becomes effective March 1, 2015, applies to employers with 15 or more employees [1] over 20 calendar weeks and who do business, employ persons, or take applications for employment within the state of New Jersey.  The law prohibits employers from asking any questions (whether oral or written) about an applicant’s criminal record during the initial application process, unless the employment is for a position in law enforcement, corrections, the judiciary, homeland security, emergency management, or any other employment position where a criminal history check is required by law, rule or regulation, or where, by law, rule or regulation an arrest or conviction would preclude the person from holding such employment, or for a position designated by the employer as part of program to encourage employment of persons with arrest or conviction records. [2]

In short, subject to the limited exceptions outlined above, employers may inquire into criminal history only after the first interview has been conducted, whether in person or by other means.  Employers may then refuse to hire an applicant based on criminal history properly uncovered, unless the criminal record or relevant portion thereof has been expunged or erased through executive pardon.  Of course, an employer’s rejection of an applicant must be consistent with other applicable laws, rules and regulations.

Furthermore, an employer is prohibited from publishing any advertisement for employment that explicitly provides that the employer will not consider persons who have been arrested or convicted of one or more crimes or convictions.  Notwithstanding, this does not apply to an advertisement that solicits applicants for positions exempted under the law, as discussed above.

Most importantly, perhaps, the law provides strong protections for employers.  Specifically, it creates no private right of action, sets no standard of care or duty for employers with respect to other laws, and deems inadmissible any evidence that an employer violated the law, except in an action by the Commissioner of Labor and Workforce Development to enforce the law.

An employer who violates this law shall be held liable for a civil penalty not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

As you may be aware, the new law underwent several major revisions before being signed it into law.  Earlier versions placed more burdensome restrictions on employers, including, among other things, requiring employers to consider in good faith additional factors (e.g. accuracy of the criminal record, rehabilitation efforts, the nature of the offense, and the duties and settings of the job sought or held) before making an adverse employment decision; and outlining certain offenses/crimes that an employer could/could not consider when making an adverse employment decision.   Employers should be mindful that such requirements still exist in other states, as well as under the federal law.


[1] The law is not clear as to whether the employer has to have 15 or more employees within the State of New Jersey.  However, a reasonable reading of the statute, along with court interpretations of similar language in other NJ statutes, suggests that the employer need only have 15 employees in any state(s) to be covered.

[2] Employers are entitled to make inquiries should the applicant voluntarily disclose his/her criminal background.

 

By: Paul Kehoe and Pamela Q. Devata

On May 15, 2014, Baltimore joined the growing number of jurisdictions to ban the box on employment applications.  Mayor Stephanie Rawlings Blake signed Baltimore’s Fair Criminal-Record Screening Practices ordinance, which bans private employers from inquiring about or conducting a criminal background check on an applicant until after an employer has essentially completed the hiring process and conditionally offered a position to an applicant.

The restriction applies to any employer with 10 or more employees within the city of Baltimore.  Thoughtfully, the restriction exempts facilities serving minors or vulnerable adults from compliance.  Unlike some other ban the box laws, the Baltimore ordinance does not require that employers provide any additional notices to applicants other than those required under the Fair Credit Reporting Act, nor does it limit how far back an employer can review.  Penalties for noncompliance include imprisonment and fines for each offense.

Baltimore joins Hawaii, Massachusetts, Minnesota, Rhode Island and some local jurisdictions, including Philadelphia, PA, Seattle, WA, Buffalo, NY, Newark, NJ, San Francisco, CA, Richmond, CA, and Louisville, KY that have adopted similar ban the box measures. Baltimore also joins Newark, NJ and Hawaii in restricting employers from conducting background checks until a conditional offer of employment has been issued.

Many other jurisdictions, both on the state and local levels, are currently considering ban the box laws for private employers.  While dozens more jurisdictions have adopted ban the box laws for public employment, the clear trend is extending similar requirements to private employers.  In addition, the EEOC recommends as a best practice that all employers remove criminal history questions from employment applications until later in the hiring process.

Private employers should review their employment applications to ensure compliance.  While each of the ban the box laws is different relative to when the criminal history question may be asked, what types of convictions can be asked about, how far back an inquiry may extend, and what exceptions apply, employers should have discussions with their background screening providers to ensure that they are only obtaining information that they can use in a hiring decision.

There are still many questions surrounding the application and administration of these new and proposed “ban-the-box” laws. Employers with questions regarding their particular employment practices should consult with counsel.

For more information on this topic or any other hiring needs, please feel free to reach out to your favorite Seyfarth attorney on the Seyfarth Hiring Solutions Team.

By Pamela Quigley Devata, Paul Kehoe, and Craig B. Simonsen

The Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have just announced two short guides on employment background checks: Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know.  The documents were not subject to Commissioner review and approval prior to publication.

Jessica Rich, the Director of the FTC’s Bureau of Consumer Protection, indicated that the “FTC is pleased to work with the EEOC to help ensure that employers and potential employees have a solid understanding of their rights and responsibilities.”

Overall, the FTC and the EEOC want employers to know a couple of things.  First, that they need written permission from job applicants before getting background reports about them from a company in the business of compiling background information. Second, that it’s illegal to discriminate based on a person’s race, national origin, sex, religion, disability, or age (40 or older) when requesting or using background information for employment.

The guides provide high-level, bullet point summaries of various laws, including Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act (FCRA), to alert employers of their duties and employees of their rights regarding criminal background checks.  Unfortunately, the guides’ vagueness provides very little practical help to employers attempting to comply with the law and almost no advice to employees or applicants beyond the recommendations to contact the EEOC or FTC with any possible complaints.  For example, both guides state that everyone must be treated the same.  Yet, the next bullet point essentially directs employers to treat everyone differently (on a case-by-case basis), as suggested in the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records issued in 2012.  While there are obvious differences between the disparate treatment and disparate impact theories of discrimination, many people without an employment law background could be further confused by the guides.

Both guides also present a limited view of what could be job-related and consistent with business necessity, i.e., a criminal background check that “accurately predict[s] who will be a responsible, reliable, or safe employee.”

Finally, statements in both guides make it appear as if the EEOC is modifying its position on conduct-related disqualifications for individuals with disabilities by suggesting that employers “[b]e prepared to make exceptions for problems revealed during a background check that were caused by a disability.”  That position seems to overstate the EEOC’s position related to conduct-related issues set forth in its Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act Enforcement Guidance issued in 2002.

Employers may wish to look closely at these two new publications, with the understanding that the documents, in and of themselves, provide little guidance on how an employer may comply with Title VII when considering criminal backgrounds.  The guide for employers does provide a good review of an employer’s obligations under the FCRA and a snapshot of additional obligations under the ADA, the Genetic Information Nondiscrimination Act of 2008 (GINA), and Title VII’s recordkeeping requirements.  However, it is important for employers to recognize that each of these areas of the law are nuanced and not conducive to a mere bullet point analysis.

At the very least, the publications illustrate that two federal government agencies are working together on the issue of employment background checks and that current employees and future applicants may have more questions about their legal “rights.”  Employers conducting background checks should be sure to evaluate their policies and processes in light of these publications and also train their Human Resources professionals on these laws.

For more information on employers responsibilities under the FCRA or use of criminal background screening in employment, please contact your favorite Seyfarth attorney.