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

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

 By Pamela Devata and Paul Kehoe

On January 13, 2014, the Southern District of California granted the United States’ motion to intervene in Dowell v. General Information Services, Inc. (“GIS”), No. 13-2581, to defend the constitutionality of 15 U.S.C. § 1681c, a provision of the Fair Credit Reporting Act. GIS contends that subsections (a)(2) and (a)(5) of the provision, which generally prohibit consumer reporting agencies (“CRAs”) from disclosing public information regarding an individual’s non-conviction criminal history more than seven years old, is unconstitutional under Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011).

The case stems from a purported class action complaint filed by three plaintiffs, alleging that GIS provided non-conviction data over seven years old in a report to a private company that regulates access and provides employee registration for military base personnel. For one plaintiff, who applied at a California military base in 2012, the report disclosed three drug counts pre-2003, including information that two had been dismissed. For a second plaintiff who applied for a position at a San Diego naval base, the report identified charges in three separate criminal cases, including felonies, along with dismissal information. Finally, the third plaintiff’s report revealed multiple charges for felonies and accurately disclosed that all had been dismissed. 

In Sorrell, the Court struck down a Vermont statute that prohibited pharmacies and data brokers from selling prescriber data if the data would be used for marketing purposes. The Court determined that because the statute permitted pharmacies and data brokers to sell the information to insurance companies, university researchers, journalists and others, that the statute imposed speaker- and content-based restrictions subject to heightened scrutiny, as is required under the Constitution. The state, therefore, failed to establish that the statute directly advanced a substantial government interest and that the measure was drawn to achieve that interest, and that statute was struck down as unconstitutional. 

In Dowell, GIS maintains that if the government could achieve its interests without restricting speech or restricting less speech, it must do so under Thompson v. Western Sates Med. Ctr., 535 U.S. 357, 371 (2002) (holding that if the Government can achieve its interests in a manner that does not restrict commercial speech, or that restricts less speech, the Government must do so). GIS argues in its motion to dismiss that the government’s purported interests — relevancy, privacy and accuracy —  do not support FCRA’s blanket prohibition on disclosure. According to GIS, less restrictive alternatives, including a restriction on employer use of the older, non-conviction data, would equally advance the government’s interest.   
Continue Reading Is FCRA’s Prohibition on CRAs from Disclosing Truthful Public Information Constitutional? The Government to Defend Its Position

By Pamela Devata, Paul Kehoe & Alnisa Bell

On December 17, 2013, Elizabeth Warren (D-Mass.), along with six other senators, introduced a bill, otherwise known as the Equal Employment for All Act, that would amend the Fair Credit Reporting Act (the “FCRA”)  to prohibit employers from using or obtaining consumer reports for prospective and

By Erin Dougherty Foley and Lily Strumwasser

A recent study commissioned by Microsoft Corporation found that nearly 80 percent of individuals hiring and recruiting use the Internet to investigate candidates. A major news network indicated that more than 77 percent of employers find information about candidates online, and 35 percent have dismissed candidates based on these findings. At first blush, looking at an applicant’s social media content makes sense – after all, with just a few clicks of the mouse you can find out all sorts of revealing information about job applicants. However, there are also several legal risks associated with viewing applicants’ social media profiles.
Continue Reading With a Few Clicks of the Mouse You Can Uncover What Job Applicants Leave Off Their Resumes

By Christopher DeGroff, Gerald L. Maatman, Jr., and Lily M. Strumwasser

“Here we go again.” It is the collective groan heard from employers across the country as they braced for the annual EEOC’s fiscal-year-end filing campaign. With 48 EEOC-initiated lawsuits filed in just the last 30 days, employers were understandably concerned. But when the EEOC’s 2013 fiscal year closed yesterday with a total of 134 lawsuits filed, and the dust settled, we saw a picture emerge about how the EEOC targeted employers in its enforcement efforts this year, and gain insight into what’s to come.

A Last Minute Rush – Again

The EEOC traditionally launches large salvos of federal court complaints across the country in the waning weeks of its fiscal year (ending September 30th). In FY 2011, the EEOC filed an astonishing 175 lawsuits in the last eight weeks of its 2011 fiscal year alone. As we reported here last year, the EEOC again revved its engine in August and September of 2012 and filed 67 of its 122 lawsuits. FY 2013 was no different, with 48 of its 134 filed in the last two months of the year – 11 today alone. Consider the graph below, capturing the month-to-month filing statistics for FY 2013.

EEOC Cases Filed By Month – FY 2013


Continue Reading Time’s Up, Pencils Down: EEOC Final Fiscal Year End Filing Totals Provide Surprises and Insight

By Condon McGlothlen

On September 4, 2013, we began our review of hiring tests and the associated legal risks.   Today, the conclusion . . . .

How and How Not to Test

The key to any good hiring (or other employment) test is the connection between success on the test and success on the job. 

By Condon McGlothlen

Hiring figures from the Administration and payroll company ADP, together with U.S. economic measures more generally, show a slow but steady climb back from the economic depths of 2009.  This has resulted in some companies at last have money to spend; some are spending it by hiring new workers.  This two-part article

By: Kendra Paul and Alnisa Bell

We recently described here how the culmination of the Equal Employment Opportunity Commission’s (“EEOC”) aggressive enforcement of its April 25, 2012 Enforcement Guidance and numerous state and local ban-the-box laws has created a new criminal background check minefield protecting criminals at the expense of employers.  But how are employers supposed to respond?

Employers, Congress, State Legislatures, Attorneys General, And Courts All Speak Out:

The EEOC steamrolled its guidance through the administrative process without providing employers the opportunity to publicly comment.  Employers argue that they have legitimate reasons for conducting criminal background checks that are being ignored.  For example, some federal and state laws require criminal background checks for specific occupations.  And, criminal background checks may help prevent negligent hiring or retention lawsuits.  The conflict between the EEOC guidance and these other laws puts employers is a “sued if they do, sued if they don’t” situation.  Until this area of the law settles, employers are wise to revise their practices to mitigate their risks so they aren’t “low-hanging fruit.”
Continue Reading Are Felons The New Protected Class?: The Criminal Background Check Minefield – Part Two