As our recent post on “ban the box” legislation indicated, employer use of criminal history records continues to be scrutinized.  In seeking and using such records to screen applicants or take action regarding employees, an employer must be diligent on several levels.

First, an employer must carefully comply with the federal Fair Credit Reporting Act, and any similar state law that is applicable, if the employer uses a third party consumer reporting agency to obtain the criminal history record.  Second, upon properly obtaining the record, the employer must comply with certain procedural safeguards before taking adverse action against an applicant or employee only as a result of information contained in a consumer report.

Many states have laws that limit an employer’s use of criminal history records.  For example, Wisconsin permits an employer to take adverse action only if the conviction offense is substantially related to the employment position at issue.  See Wis. Stat. § 111.335.  Similarly, Minnesota restricts public sector employers from taking action unless the crime conviction directly relates to the employment position.  See Minn. Stat. § 364.03.  Minnesota does not at this time impose similar restrictions on private sector employers.

Nonetheless, Minnesota employers must be mindful of the 2012 EEOC Guidelines regarding use of arrest and conviction records.  These guidelines focus on possible race or national origin discrimination under federal law arising from use of criminal history records.  The EEOC notes that arrest and incarceration rates are markedly higher for persons of color.  In particular, the guidelines state that African American and Hispanic men are arrested at a rate 2 to 3 times the general population.  According to the EEOC, while 1 in 17 Caucasian men are expected to serve prison time in their life, 1 in 6 Hispanic men and 1 in 3 African American men can expect the same fate.

Because of these statistical racial disparities, the EEOC guidelines provide that employers should use caution in taking action based on criminal history records.  The federal agency notes that employers generally should take no action based on an arrest record alone.  When considering conviction records, the EEOC encourages reliance on the three factors set forth by the Eighth Circuit Court of Appeals in Green v. Missouri Pacific Railroad, 523 F.2d 1290, 1293 (8th Cir. 1975):

  • The nature and gravity of the offense or conduct,
  • The time that has passed since the offense or conduct and/or completion of the sentence, and
  • The nature of the job held or sought.

The EEOC guidelines also encourage employers to engage in “individualized assessment” prior to taking any action.  Such assessment consists of providing the applicant or employee notice of the potential adverse action based on their criminal history, allowing the individual an opportunity to respond with pertinent facts, and considering whether the individual’s additional information merits avoiding the adverse action.

Takeaway:  Employers should rarely, if ever, take adverse action based solely on an arrest record.  Further, employers should generally avoid blanket exclusions based on any criminal conviction history, but instead should consider the relevance of the conviction to the job at issue.  Finally, employers should make sure to be aware of, and comply with, any applicable state laws regarding criminal history records, such as the new “ban the box” legislation in Minnesota.