On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
On May 28, 2019, Colorado governor Jared Polis signed into law the Colorado Chance to Compete Act (House Bill 19-1025), more commonly known as “ban the box” legislation. The recently signed Act is another example of pro-employee legislative change that has taken place since the Democrats gained control of the state legislature in 2018.
On April 3, 2019, New Mexico governor Michelle Lujan Grisham signed into law two bills related to criminal background checks that may affect employers operating in the state. The first is a ban-the-box law that prohibits private employers from inquiring about an applicant’s criminal history on an employment application. The second allows certain individuals to petition the court for expungement of criminal records.
Westchester County, New York, which is located on the outskirts of the New York City metropolitan area, has enacted a ban-the-box law that places limits on an employer’s ability to make preemployment inquiries into and statements about a job applicant’s criminal history.
The disclosure requirement of the federal Fair Credit Reporting Act (FCRA) remains one of the most contentious and expensive litigation areas for employers. The case law from various federal district courts has been a mixed bag, leaving employers to question what it means to provide a “clear and conspicuous” disclosure in a writing that “consists solely” of the disclosure.
On October 1, 2018, San Francisco’s amendments to its Fair Chance Ordinance (FCO) took effect. The FCO is San Francisco’s “ban the box” equivalent that regulates employers’ use of applicants’ and employees’ arrest and conviction information.
On September 24, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) reaffirmed the importance of following its 2012 enforcement guidance on employer use of criminal history information—specifically the EEOC’s targeted screening process and individualized assessment process–when it announced a voluntary agreement with large furniture retailer Rooms To Go.
On September 12, 2018, the Consumer Financial Protection Bureau (CFPB) issued an interim final rule updating its A Summary of Your Rights Under the Fair Credit Reporting Act form, (“Summary of Rights”) which is required to be given by employers to applicants and employees at various points in the background check process.
Twenty years ago, on a warm summer day, Hawaii enacted a restriction on employer inquiries into an applicant’s work history until after a conditional offer of employment. Intended to give applicants with criminal histories a fair shot at employment, the law—the first state “ban the box” law—crystalized a movement that, in time, would yield similar restrictions in 12 states and 17 localities (for private employers). The result is a crisscrossing jumble of requirements with little uniformity, putting employers in a difficult position when dealing with applicants (and sometimes even existing employees) in different jurisdictions.
New York City has issued new rules interpreting the city’s Fair Chance Act (FCA). These rules, which went into effect on August 5, 2017, provide clarification and guidance on how employers can comply with the requirements of the FCA, the city’s restrictive “ban the box” law which prohibits (with few exceptions) employers from inquiring about or considering an individual’s criminal history until after a conditional offer of employment is extended.
On January 20, 2017, the Ninth Circuit became the first court of appeals to weigh in on several important legal issues for expensive, increasingly common background check class actions—specifically (a) the extraneous content and language in an employer’s background check disclosure forms and online screens that violate the federal Fair Credit Reporting Act (FCRA), and (b) the standing requirements to file background check claims. In Syed v. M-I, LLC, the Ninth Circuit held that (1) inclusion of a liability release in an employment background check disclosure is a willful violation of the FCRA, subjecting an employer to expensive statutory and punitive damages, and (2) this kind of violation results in a concrete harm that satisfies Article III standing, as recently clarified by the Supreme Court of the United States in Spokeo, Inc. v. Robins.
California recently amended its existing law governing inquiries into and the use of juvenile criminal information. Effective January 1, 2017 employers will be restricted from asking about, seeking, or using a California applicant/employee’s juvenile criminal history in the employment context.
Portland, Oregon’s ban-the-box law, the Removing Barriers to Employment Ordinance, took effect on July 1, 2016. The ordinance prohibits most Portland employers from asking about an applicant’s criminal history or conducting a background check on an applicant until after a conditional offer of employment has been made.
A somewhat surprising decision in favor of the State of Texas was handed down from the Fifth Circuit Court of Appeals on June 27, 2016, which held that (i) Texas had standing to challenge the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the Guidance) and (ii) the Guidance is a “final agency action” for the purposes of the Administrative Procedures Act (APA). State of Texas v. EEOC, No. 14-10949, Fifth Circuit Court of Appeals (June 27, 2016).
On June 1, 2016, Connecticut Governor Dannel P. Malloy signed into law a “ban-the-box” statute, which will take effect on January 1, 2017. The law, “An Act Concerning Fair Chance Employment,” Public Act No. 16-83, prohibits covered employers from inquiring about a prospective employee’s prior arrests, criminal charges, or convictions on an initial employment application.
On May 3, 2016, Vermont Governor Peter Shumlin signed into law a “ban the box” statute, which will take effect on July 1, 2017. The law will prohibit covered employers from inquiring about information pertaining to an individual’s criminal history record on an initial employment application. The law does, however, allow an employer to inquire about an applicant’s criminal history record (i) during a job interview or (ii) once the applicant has been deemed otherwise qualified for the position.
On March 24, 2016, the Austin City Council passed a “ban-the-box” ordinance, the Fair Chance Hiring Ordinance, which took effect on April 4, 2016. The final version of the ordinance was released on April 12, 2016. It prohibits covered employers from inquiring about an individual’s criminal history information, including running background checks, until after a conditional offer of employment has been made.