In 2014, background checks were a hot topic in state and local legislatures. Before this year, only 8 jurisdictions in the country had passed laws preventing private employers from asking job candidates about their criminal histories on an employment application (i.e., “banning the box”). This year alone, however, 9 jurisdictions enacted ban-the-box laws covering private employers—Baltimore, Columbia (MO), Illinois, Montgomery County (MD), New Jersey, Prince George’s County (MD), Rochester (NY), San Francisco, and Washington D.C. Louisville, Indianapolis, and Syracuse also banned the box for private employers with city contracts, while Delaware and Madison (WI) “encouraged” the same.
Several of these so-called “ban the box” laws also restricted the types of arrests or convictions about which employers may inquire or consider when hiring. For example, the new San Francisco law bans inquiries about convictions that are more than seven (7) years old; the new Washington D.C. law prohibits questions about arrests and criminal accusations that are not pending or did not result in conviction; and New Jersey’s new law bars queries about expunged records. Some of the new laws, such as those in San Francisco, Washington D.C., and Montgomery and Prince George’s Counties also imposed certain notice obligations on employers.
In addition to this state and local legislative activity, the U.S. Equal Employment Opportunity Commission (“EEOC”) continued to scrutinize employer background check procedures, though without much success. In EEOC v. Kaplan Higher Education Corp., 748 F.3d 749 (6th Cir. 2014), the Sixth Circuit affirmed an award of summary judgment against the EEOC in its suit alleging that Kaplan’s use of credit checks disparately impacted African-American applicants in violation of Title VII of the Civil Rights Act of 1964.
Despite setbacks in litigation, the agency issued guidance on the use of background checks in hiring and personnel decisions. The brochure—Background Checks: What Employers Need to Know—advises employers on their existing legal obligations under federal nondiscrimination laws and the Fair Credit Reporting Act (“FCRA”) when obtaining, using, and disposing of background information. The Federal Trade Commission also issued two brochures—Background Checks: What Job Applicants and Employees Should Know & Tips for Job Applicants and Employees—that walk applicants and employees through their rights under FCRA.
Though the primary focus on background checks this year concerned credit and criminal history, there were other noteworthy developments. The governors of California and New Jersey vetoed bills that would have greatly limited employers from considering an applicant’s unemployment status in hiring decisions. And, Louisiana, New Hampshire, Oklahoma, Rhode Island, Tennessee, and Wisconsin prohibited employers from requesting or requiring prospective and current employees to provide their passwords to their personal social media accounts.
If trends are any guide, we expect more developments in 2015. Stay tuned.