Privacy Issues in the Workplace

Employers should specifically request that the Department of Justice only provide information about convictions, or arrests pending adjudication.

Once the employer obtains an applicant’s criminal record, it must determine whether it will hire the individual or withdraw a conditional offer of employment. An employer should not automatically disqualify applicants with criminal records. Rejecting all applicants with criminal records might disproportionately impact individuals within a protected class and lead to a disparate impact race discrimination lawsuit against the agency. The agency should therefore consider all of the circumstances related to the conviction and whether it has any relationship to the job. The following factors should be given consideration:

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Nature and seriousness of the offense

 Circumstances related to the conviction

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Repeat offenses

 Relationship between the job and the conviction

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Length of time since last conviction

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Age at the time of conviction

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Evidence of rehabilitation

Deciding whether to hire an individual with a criminal record requires thorough analysis and assessment. Human resources professionals know that they must assess each candidate’s ability to perform the essential functions of a job. The rules preventing employers from automatically disqualifying individuals on the assumption that a disability prevents them from doing the job also applies to criminal convictions. The employer needs to consider the applicant’s individual circumstances to determine if the conviction is sufficiently serious, recent and job-related to disqualify him or her from the job. In addition, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance regarding the consideration of arrest and conviction records in employment decisions. 107 The enforcement guidance reaffirms two uses of criminal history information by employers that may violate Title VII: (1) “disparate treatment”, when the employer treats applicants with the same criminal history differently because of their race, color, religion, sex, or national origin; and (2) “disparate impact”, where even though the employer applies criminal record exclusions uniformly, the exclusions operate to “disproportionately and unjustifiably” exclude people of a particular race or national origin. The employer can overcome a showing of disparate impact by demonstrating that the exclusion is “job related and consistent with business necessity”. 108 As mentioned above, Government Code section 12952 likely does not apply to schools and community colleges because they are required to fingerprint applicants.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 35