THE MAGAZINE

Criminal Records Restrictions

By Rod M. Fliegel and Jennifer L. Mora

The protections of the new Texas law will not apply in two circumstances. First, with regard to suits against an employer concerning the misuse of funds or property, the protections will not be available to the employer if the ex-offender was hired for a position with fiduciary responsibilities in the management of funds or property and, at the time of hire, the ex-offender had a prior conviction for a crime that involved fraud or the misuse of funds or property. Second, and more generally, the protections will not apply if the employer knew or should have known of the prior conviction, and the prior conviction involved a specified sexual or violent offense or the crime was committed while performing duties “substantially similar” to those reasonably expected to be performed in the employment.

City Statutes

Action at the local level has generally involved “ban the box” initiatives. This term refers to the box that applicants must check in response to a question on an employment application that asks if they have been previously convicted of a crime.
For example, in May 2013, the city of Buffalo, New York, voted to restrict private sector employers operating in Buffalo from inquiring about criminal history on an employment application. Once the measure takes effect in January 2014, employers with 15 or more employees located in Buffalo will be deemed to have engaged in unlawful discrimination if they make an inquiry about or require any person to disclose a criminal conviction during the “application process,” which begins when the applicant inquires about the employment sought and ends when an employer has accepted an employment application.

The law also makes it illegal for an employer to make any inquiry about a criminal conviction before a “first interview,” which means “any direct contact by the employer with the applicant whether in person or by telephone,” to discuss the employment. Under the Buffalo law, companies retain the ability to request conviction information from an applicant seeking to work in a regulated position. However, in these circumstances, employers must consider eight factors required under New York state law to determine whether the conviction bears a direct relationship to the duties and responsibilities of the position sought.

Seattle, Washington, has also passed a law to limit the use of criminal records for employment purposes; the law is applicable starting in November. Specifically, employers may not advertise, publicize, or implement any policy or practice that automatically excludes all individuals with any arrest or conviction records from employment for a job that will be performed at least 50 percent of the time within city limits. Seattle employers may continue to perform criminal background checks but only after the employer has completed an initial screening of applications or résumés to eliminate unqualified applicants.

Employers may inquire about the conduct related to an arrest record, but they may not carry out a tangible adverse employment action “solely based on” such an arrest record. Before taking any tangible adverse employment action, the employer must identify the records or information on which it is relying and provide the applicant with a “reasonable opportunity” to explain or correct that information. Employers must hold open a position for a minimum of two business days after providing such notice to afford the individual a reasonable opportunity to correct or explain that information.
 

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