It’s time to rethink criminal conviction investigations

New Washington D.C. law governs timing of doing a criminal conviction investigation on an applicant.

Most jurisdictions with “ban the box” legislation require that employers not ask about criminal convictions on their application. Rather, the criminal conviction can be asked at some point during the interview process.

The Council of the District of Columbia, however, recently enacted legislation that places two new restrictions on the use and investigation of criminal convictions.

First, it prohibits the inquiry into prior criminal convictions until after a conditional job offer has been extended. This requirement is similar to the ADAA requirement that employers neither perform a physical medical examination nor investigate the existence of any prior worker compensation filings until after the conditional job offer has been extended. So, this requirement is not an entirely new procedure on the use of investigative records. It is new regarding the use of criminal convictions.

Second, this new law prohibits an employer from making an inquiry about arrests or any other criminal accusation that is not then pending or did not result in a conviction. This requirement goes significantly beyond any other laws in this area. And, it appears to directly conflict with acceptable inquiries into arrests specifically listed in EEOC regulations.

EEOC regulations however do  allow an employer to consider the underlying conduct of pending arrests. The regulations specifically cite an example. In the example, David applies for a teaching position in West High School. David was arrested two years earlier for statutory rape, having been accused of seducing a seventeen-year old student in his class when he taught at another high school. The charges were dismissed. West High decides to conduct a further investigation and learns that David was arrested after another teacher found him engaged in sexual activity with a student. The EEOC states that West High is justified in attempting to protect its students from teachers who may make sexual advances toward them. Although he might not have been guilty of statutory rape, his conduct was unbefitting a teacher.

As with any law, there are of course exceptions i.e. if Federal or District law requires the consideration of an applicant’s criminal history at any facility or employer that provides programs, services or direct care to minors or vulnerable adults.

Following the extension of a conditional offer of employment, an employer may only withdraw the conditional offer to an applicant or take an adverse action against an applicant for a legitimate business reason. The employer’s determination of a legitimate business reason must be reasonable in light of the following factors:

• The specific duties and responsibilities necessarily related to the employment sought or held by the applicant,
• The bearing, if any, of the criminal offense for which the applicant  was previously convicted will have on his  or her fitness or ability to perform one or more such duties or responsibilities,
• The time which has elapsed since the occurrence of the criminal offense,
• The age of the applicant at the time of the occurrence of the criminal offense,
• The frequency and sinuousness of the criminal offense, and
• Any information produced by the applicant, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense

Do the above conditions look familiar? They are the requirements of the EEOC already in place in having individualized assessments in place.

What basic steps should an employer implement? We have some suggestions:

1.  Clear background investigation policy for your firm
   1. How screenings are performed (depth and intensity)
   2. Who performs the screenings
   3. When are screenings performed
   4. Forces establishment of clear link between background check and job duties & responsibilities
   5. Important exercise by itself but is even more important given recent EEOC regulations
   6. Documents the decision process
   7. Establish responsible parties in decision process
   8. Describe how are processes and decisions documented
2. Job descriptions that outline duties and reasons why the existence of certain criminal convictions within a specified time period are not acceptable
   1. Clarifies and communicates responsibilities and relationships
   2. Minimize conflicts, improves communications
   3. Provides information about knowledge, training, education and skills and prior unacceptable behavior
   4. Are there requirements, legal or third party,  obligating employer to screen for criminal records
   5. Prevents applicant misunderstandings of the job
   6. Provides a basis for job performance evaluations
   7. Effectively presents the essential functions of job
   8. Crucial first step in deciding levels and relevance of screening
3. Comply with EEOC regulations
   1. Determine whether a criminal conduct exclusion is job related and consistent with business necessity
   2. Develop a targeted screen considering the nature and gravity of the crime, the time elapsed, and the nature of the job
   3. Policy links specific criminal conduct with the risks inherent in position duties
   4. Develop individualized assessment
   5. Provide notice to the individual that screened out because of a criminal conviction
   6. Provide opportunity for the individual to demonstrate that the exclusion should not be applied due to their particular circumstances
   7. Strike balance – allow for people who have turned their life around – Don’t automatically exclude anyone with a prior conviction

We believe that the above are similar to the pre-adverse/ adverse action requirements of FCRA.

We encourage you to work with your CRA to develop matrix of criminal convictions to help you identify individuals with unacceptable prior behavior in the background.

If you wish to discuss any of these issues, feel free to call us at 410.494.0232