Housing and Criminal Background Checks

HUD has issued guidance indicating it will review of the use of criminal background checks in determining qualifications for residents in housing. HUD is following the lead of the EEOC concerning criminal convictions and employment. Under the guidance, refusing to rent to someone on the basis that he or she has a prior conviction may be illegal discrimination under the Fair Housing Act.

Continue reading Housing and Criminal Background Checks ›

If Being "Proactive" is a Management Objective, This is a Good Year

At the beginning of the calendar year, many in-house counsel and human resources professionals embark on taking steps to meet their annual management objectives. If history is any guide, many human resources professionals and in-house counsel have as one of their objectives taking “proactive” steps to minimize risk to their organizations. For those who have such objectives, the changes in the legal landscape provide fertile opportunities under (1) wage and hour laws; (2) background screening; and (3) policies and procedures, including related to equal employment laws.

Continue reading If Being "Proactive" is a Management Objective, This is a Good Year ›

Ban the Box Laws - Should Employers ask Applicants about Convictions on Employment Applications?

Over the past few years some states have passed laws known as “Ban the Box” laws.  Most of these laws prohibit employers from inquiring into convictions in job applications, unless employers are required by law to perform criminal background checks.  These laws typically allow for employers to ask about convictions in the interview process or after a conditional offer is made.  As of today, six states, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island, have ban the box laws that extend coverage to private employers.   Several other cities across the country, including the District of Columbia, have also passed similar laws.   Additionally, several other states are discussing and proposing Ban the Box laws.  While Georgia has not yet passed a Ban the Box law that applies to private employers, last month the Atlanta City Council passed an ordinance that removes a requirement that job applicants disclose criminal histories to the City of Atlanta.  Violations of these state and municipal laws typically lead to fines and a potential cause of action for employers.

Employers should also be mindful that the Equal Employment Opportunity Commission (EEOC) requires employers to do an individual assessment when they learn that an employee was convicted of a crime.  The EEOC suggests that employers analyze the nature of the crime; the time elapsed; and the nature of the job before refusing to hire job applicants over a conviction.

Bottom line, asking about criminal convictions in applications can be helpful to identify potential issues.  Employers should review their hiring and background procedures, including making sure they are compliant with both federal and state laws such as the Fair Credit Reporting Act (which we previously blogged about last month), Ban the Box laws, and EEOC guidance.   Multi-state companies who wish to continue asking questions related to criminal convictions need to make sure they do not run afoul of Ban the Box state and/or municipal laws by having different versions of applications.

Background Checks

Employer Obligations

You should have a good reason for doing a credit check on a current employee.  For the most part, the same rules that apply to obtaining a credit report on an applicant also apply to employees.  The federal Fair Credit Reporting Act (FCRA) governs the circumstances under which you (or anyone, for that matter) may obtain consumer reports (e.g., credit reports, criminal background checks, and driving, educational, and other records obtained from a consumer reporting agency).

Continue reading Background Checks ›