Workplace Investigations Blog : California Employment Investigation Lawyer & Attorney : Debra Reilly Law Firm : CA Personnel, Sexual Harassment & Equal Employment Opportunity (EEO) Investigator

I recently attended an EEOC Training Seminar in Pasadena where Maurice Emsellem, Esq., Director of the Second Chance Labor Project and National Employment Law Project provided an enlightening discussion on how criminal background checks have a disparate impact on people of color, California African American job applicants in particular.  An interesting fact is that about one in five adult Californians has a criminal record on file with the State.  You can view one of his Powerpoint Presentations to see the work reentry challenges these applicants face in California (19.4% of the Nation's total).  

According to Attorney Emsellem, one of the main problems is many employers have "blanket prohibitions" against hiring anyone with any kind of a criminal record, no matter how old the conviction and no matter what the prior offense was.

Along these same lines, the EEOC has posted some guidelines about employers using "conviction records" as a screening method.  Workplace investigators should review these EEOC guidelines prior to undertaking the investigation of a "failure to hire" claim.  The EEOC policy strictly limits consideration of prior criminal convictions.

• Business Necessity Defense:  Employers must justify employment decisions based on convictions, as follows:  

1. The conviction must be "job-related" taking into account the nature and gravity of the offense or offenses;
2. The nature of the job held or sought; and 
3. The time that has passed since conviction and/or completion of the sentence.

• Rejected Defense:  Employer's argument that it has a significant representation of that minority race in its existing workforce (the "bottom line" defense) is not a valid defense to a disparate impact claim.   Connecticut v. Teal, 457 U.S. 440 (1982).  

Footnote 6 of the EEOC Guidelines states:

The [EEOC's] revised business necessity analysis follows a decision by the United States Court of Appeals for the Eighth Circuit in the Green v. Missouri Pacific Railroad Company case. Green, 523 F.2d 1290 (8th Cir. 1975), is the leading Title VII case on the issue of conviction records. In that case, the court held that the defendant's absolute policy of refusing employment to any person convicted of a crime other than a minor traffic offense had an adverse impact on Black applicants and was not justified by business necessity. On a second appeal in that case, following remand, the court upheld the district court's injunctive order prohibiting the defendant from using an applicant's conviction record as an absolute bar to employment but allowing it to consider a prior criminal record as a factor in making individual hiring decisions as long as the defendant took into account "the nature and gravity of the offense or offenses, the time that has passed since the conviction and/or completion of sentence, and the nature of the job for which the applicant has applied." Green v. Missouri Pacific Railroad Company, 549 F.2d 1158, 1160 (8th Cir. 1977) (emphasis added).

Accordingly, EEO investigators should be aware of the need for an employer to make "individualized hiring decisions", based on the three criteria delineated by the EEOC in its guidelines, rather than utilizing a "blanket prohibition" of applicants with prior convictions.

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A benefit of using employment applications in hiring is the ability of the employer to directly ask an applicant if he/she has a criminal history that would show up if a thorough background check was conducted, according to Lester S. Rosen of Employment Screening Resources in his August 2009 article in the Lorman Education Service Labor and Employment Law Update Newsletter.

He states that "one problem is that many employers use language that is either too narrow, too broad, or too ambiguous to successfully accomplish this," and each of these errors may lead to legal problems or bad hires. This post addresses the job application that is "too narrow."

According to Attorney Rosen:

"An example of a question that is too narrow is to only ask about felonies.  Many standard employment applications only ask if an applicant was convicted of a felony. That allows the application form to be used in all states. However, misdemeanors can be very serious.  Under California law, for example, most employers would want to know if an applicant had a conviction for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California and other states, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that he or she has not been convicted of a felony even though there may be serious misdemeanor convictions an employer needs to know about. A best practice would be to utilize an application form that asks about past criminal conduct in the broadest language allowed by law in your state."

Personally, I have had this issue come up in an EEO investigation, but in the context of an employer learning about a criminal conviction after the employee was hired.  It should be noted that "having a prior criminal record" is not a protected class under any EEO laws, thus, it is not something that normally would trigger an EEO investigation.  However, this is an issue that can creep into any workplace investigation.  For example, it may come up in a "mixed motive" case where an employer based its employment decision on a legitimate business reason, but the employer contemporaneously "discovered" a past conviction of the affected employee.

A number of limitations exist under state and federal law concerning what an employer may legally ask about or "discover" concerning an applicant's or employee's criminal record. Under California law, an employer who knowingly violates some of these rules could be unwittingly committing a misdemeanor. 

California Labor Code Section 432.7 prohibits employers from asking about an arrest or detention that did not result in a conviction. There is an exception for certain arrest records when the applicant is applying for work at a health care facility and would have access to patients, drugs or medication.  Further, California law limits the consideration of any misdemeanor conviction information in cases where probation has been successfully completed or otherwise discharged and the case has been judicially dismissed when making employment decisions.

An employer should consult with its attorneys on how to most broadly draft this question on an employment application without crossing the line.  

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