Volume XIV
December 2007

From the Desk of Jason B. Morris, President and COO

State Bills that really "Grind my Gears!"

Yes, I have made a shameless “Family Guy” reference when I say this really “Grinds my Gears!”, but there are several pending state bills that will have a negative impact on employers. I try not to get too worked up about these issues because their intentions are always good. In my capacity with NAPBS over the years I have had the opportunity to be involved in lobbying for various proposed legislation involving our industry. An important lesson learned is that there are always unintended consequences in good ideas. Understandably, it’s a legislator’s job to create bills and laws that benefit their constituency. Lobbyists may not enjoy the best reputation in light of recent scandals, but if it was not for them no one would be there to support the needs of employers in this country.

Proposed Bill in Ohio
Let’s kick this off with my home state, the buckeye state, the great state of Ohio. State Senator Shirley Smith has proposed a bill, SB 197, effectively allowing repeat felons to have their records expunged. I understand that only certain felony convictions would be eligible for expungement, but it has been reported that this list includes felonies such as manslaughter, reckless homicide, domestic violence, stalking and abduction. These are serious crimes that ought to be considered by the employer. I argue that a felony conviction is a felony conviction, regardless of the crime, and that if it weren’t a serious crime, then it wouldn’t be prosecuted.

How does this affect employers? If a record is expunged, then it ceases to exist on an individual’s criminal record. When a background check is conducted that record will not be reported, and therefore cannot be considered in the employer’s hiring decision. This leaves the employer at an extreme disadvantage. It is not our position to seem “cold hearted” when it comes to employing ex-offenders, we believe that there is a job out there for everyone. However, the employer has the responsibility to determine who may pose an unreasonable threat to their business, customers, employees, and assets based on a level playing field of information.

Statute Revision in Connecticut
Last month there was a Notice of Declaratory Ruling Proceeding by the Connecticut Department of Public Safety. In a nutshell, the CT Department of Public Safety is looking to revise section 4-176 of their statute requiring employment screening companies to have a Private Investigators License. Our position is very simple; we support licensing statutes for Private Investigators… that are in the business of Private Investigation. Employment screening is not an Investigation; it’s a verification of information done with the expressed written consent of the subject. As a Licensed Private Investigator in several states I fail to see any benefit in a regulatory body that has no relevant experience in our industry. I have taken several PI exams that actually have incorrect information as it relates to pre-employment screening; I had to answer the question incorrectly in order to be correct?

Under Federal Appeal – Title VII of the Civil Rights Act of 1964
Lastly is a federal case that I took a seminar on a few months back. This is a very complex case that you should discuss with your labor attorney but I am told it can have an extreme impact in setting your employment criteria and how you use your employment screening results when making a decision on employment. The case is Douglas El vs. Southeastern Pennsylvania Transportation Authority (SEPTA). This is an employment discrimination action that is currently under Federal Appeal, but the initial ruling is worthy of review by anyone involved in setting corporate hiring policy.

This case demonstrates potential discrimination liability for employers that institute a blanket policy of not hiring anyone with a criminal record. Mr. El had applied for and accepted a position with SEPTA in January 2000, contingent to the successful completion of a criminal background check. He disclosed on the application that he had been convicted of second degree homicide in 1960 when he was fifteen years old, and served time in prison for the crime. He also signed a criminal history release authorizing the criminal check. He was terminated during the training program when his background check revealed the homicide conviction from 40 years earlier.

The EEOC agreed with the plaintiff that SEPTA’s “policy or practice of excluding individuals from employment on the basis of their conviction records has a disparate impact on blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.” Essentially, SEPTA failed to provide evidence that consideration had been given to such factors as the nature and gravity of the offense, the time that had passed since the conviction and/or completion of the sentence, the circumstances surrounding the conviction or the relationship between the conviction and the position sought. Therefore it “acted on a policy which unlawfully served as an absolute bar to employment for individuals who had certain types of criminal convictions.” The implication is that they should have considered these factors and would have been required to demonstrate a business necessity for denying a job or firing Mr. El based upon his 40-year-old criminal conviction.

Read more details and a discussion of this case at: www.employeescreen.com/web/pdfs/el_vs_septa.pdf

As our valued clients it is important to us to keep you abreast of the ever changing laws governing background checks. Just this year we have commented on several state and federal bills and feel we have had a large impact on their resolution. We take a very proactive approach and lobby continually to state and federal legislatures to protect the integrity of our industry, access to information necessary for informed hiring decisions, and protection of individual privacy rights.