BACKGROUND CHECKS: ARE THEY REALLY ALLOWED TO DO THAT?
Ty Hyderally, Esq.October 2015 Newsletter
Many prospective employers conduct background checks on applicants as a routine part of their hiring and vetting process. The background checks are generally performed by outside companies that are hired by employers to “vet” individuals that the employer is considering for employment. Depending on the employer and the nature of the position for which the applicant is being considered, the employer may request reports about an applicant’s driving record, criminal record, and/or credit history. Of these reports, criminal records are most often sought by potential employers. See N.J.S.A. 34:6B-12 (“Criminal background checks by employers have increased dramatically in recent years, with estimates of 90 percent of large employers in the United States now conducting background checks as part of the hiring process.”); National Consumer Law Center, available at http://www.nclc.org/issues/broken-records.html (citing a 2010 Society for Human Resource Management survey). Thus, job seekers with criminal records face an additional hurdle in their path to employment.
New Jersey law gives employers the right to request and obtain information about an applicant’s criminal record. New Jersey Administrative Code (N.J.A.C.) 13:59-1, et seq., authorizes the dissemination of New Jersey criminal history record information by the State Bureau of Identification (SBI) of the New Jersey State Police Identification & Information Technology Section, for noncriminal justice purposes. This regulation authorizes any potential employer, be it governmental or private, to obtain a very broad range of information about an applicant’s criminal record for the purpose of assessing the applicant’s suitability for employment. The regulation authorizes employers to “obtain from the SBI all records of convictions in the New Jersey state courts and, regardless of their age, all records of pending arrests and charges for violations of New Jersey laws, unless such records have been expunged.” Thus, employers can obtain an applicant’s criminal record, excluding only arrests that have already been adjudicated and did not result in a conviction.
Given the above, it is important that job seekers with criminal records are aware of their rights and any limits on employers’ rights to obtain and use their records. The New Jersey regulation requires that employers submit the applicant’s signed consent before obtaining that person’s criminal record. Also, the employer must give the applicant adequate notice and reasonable time to confirm or deny the accuracy of the information in the report, before taking adverse action based on that information. See N.J.A.C. 13:59-1.2. At the federal level, the protections of the Fair Credit Reporting Act apply to criminal background checks on potential employees as well. See 15 USC §1681a (d)(1)(B).
Additionally, a blanket policy of rejecting all applicants with a criminal record has been found to raise Title VII concerns. Because arrest rates are significantly higher for African Americans and Latinos, using criminal records as a bar to employment would have a disparate impact on members of those protected groups. The Equal Employment Opportunity Commission (EEOC) has issued guidelines stating that an employer should examine the nature and gravity of the criminal offense or conduct, how much time has passed since the offense or sentence, and the nature of the job (how much supervision the employee will receive, etc.), when determining the impact of the criminal record on the applicant’s suitability for employment. See EEOC Enforcement Guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. The EEOC has also said that employers should give applicants an opportunity to explain the circumstances surrounding their criminal history and provide mitigating information showing that the employee should not be excluded based on the offense. See id.
Job seekers with criminal records received some relief in March 2015, when the Opportunity to Compete Act, otherwise known as the “Ban the Box Law,” went into effect. The Act prohibits employers from inquiring about an applicant’s criminal record, “during the initial employment application process.” N.J.S.A. 34:6B-14. The Act further defines the “initial employment application process” to end after an “employer has conducted a first interview.” N.J.S.A. 34:6B-13. Thus, an employer is effectively barred from asking about an applicant’s criminal record on any initial job application, or during the applicant’s first interview. No longer will employers be able to screen out and exclude applicants with criminal records by means of a check box on a job application. While employers are still allowed to inquire about applicants’ criminal records, applicants will at least have the opportunity to present themselves to the employer before inquiries into their criminal record are allowed.
Some job seekers will be able to avail themselves of the expungement process to effectively erase their criminal record, as discussed in the article below.
By Isaac Graff and Jennifer Vorih, Esq.
NEW JERSEY SUPREME COURT DENIES REQUEST TO EXPUNGE ONE CONVICTION FOR TWO CRIMINAL EVENTS
Ty Hyderally, Esq.
Expungements are an important tool for job seekers with a criminal record. Most prospective employers run a background check on an applicant’s criminal history when determining his or her suitability for the position. At first glance, a criminal record of any kind does not reflect well on a job applicant. As a result, it behooves any job seeker with a criminal record to try to have the offense expunged.
For most purposes, expungement accomplishes that, “the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred.” N.J.S.A. 2C:52-27. To be granted expungement, a person must file a Petition for Expungement with the courts. N.J.S.A. 2C:52-1 to -32. If the expungement is granted, ”criminal records are extracted and isolated, but not destroyed.” In re Expungement Petition of J.S., 2015 N.J. LEXIS 821, *25 (N.J. Aug. 10, 2015).
The intent of the Legislature in enacting the expungement statutes was clear: “The purpose of this act is to assist only those persons who have one single conviction against them, and from the time of the conviction and for a period of ten years thereafter have lived exemplary lives during that time and are able to show by their petition that they have made a complete moral change.” Sponsor's Statement to Assemb. 293 (Feb. 10, 1936). To that end, the New Jersey Legislature has consistently strived to limit expungement to offenders who have committed no more than an isolated infraction in an otherwise law-abiding life. As originally enacted in 1931, and as amended in 1936, the statute required that the offender have been convicted only once, and that “no subsequent conviction has been entered against” the offender.
The statute was amended in 1979 and again in 2010. In 2010, the Legislature limited the availability of expungement to offenders who have not “been convicted of any prior or subsequent crime,” in place of the former requirement that “no subsequent conviction has been entered against” the petitioner (see, e.g., N.J.S.A. 2A:164-28 (repealed 1979)). Thus, the statute now focuses on prohibiting expungement of multiple “crimes,” as opposed to multiple “convictions.”
The New Jersey Supreme Court recently interpreted the statute’s amended language to prohibit expungement in cases involving multiple offenses committed over a short period of time and adjudicated in a single conviction, in In re Expungement Petition of J.S., 2015 N.J. LEXIS 821, *27 (N.J. Aug. 10, 2015). The Court ruled that multiple crimes, even if they result in a single sentencing and conviction date, will bar a petitioner from expungement. In the matter of In re Expungement Petition of J.S., J.S. was caught selling small quantities of marijuana two times in a span of five days. The two offenses resulted in one judgement of conviction. The Appellate Division ruled and the Supreme Court affirmed that despite J.S.’s arguments that his multiple offenses should be considered one crime spree, each one was in fact a “separate criminal event,” and thus, J.S. was precluded from expungement because he had been “convicted of a prior or subsequent crime.” Had the standard still been one conviction, J.S. would not have been precluded from expungement.
Unless the Legislature further amends the statute, any two crimes, no matter how similar or close in time, will preclude a petitioner from having her or his record expunged, unless the acts are “part of a single, uninterrupted criminal event.” Id.
By Isaac Graff and Jennifer Vorih, Esq.
EEOC GUIDELINES: CRIMINAL BACKGROUND CHECKS AND TITLE VII
Ty Hyderally, Esq.
As part of its effort to “eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII,” the Equal Employment Opportunity Commission (“EEOC”) issued an Enforcement Guidance on April 25, 2012, regarding employers’ use of arrest or conviction records, in making employment decisions. EEOC Enforcement Guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. This Enforcement Guidance reinforced long-standing EEOC guidance “applying Title VII principles to employers' use of criminal records to screen for employment.” Id. The EEOC recognized that providing guidance in this area was more imperative in recent times than ever before, because there has been a significant increase in the number of Americans who have had contact with the criminal justice system over the past twenty years. See id. As a result, the number of people with criminal records in the working-age population has increased dramatically.
The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, and national origin. Having a criminal record is not a protected class under Title VII. Therefore, whether an employer's reliance on a criminal record to deny employment violates Title VII depends on whether it is part of employment discrimination based on one of the protected classes. Id.
Title VII liability for employment discrimination can be based on one of two analytic frameworks: "disparate treatment" and "disparate impact." Id. Disparate treatment in the use of criminal records in the employee screening process is found in the classic discrimination scenario, wherein an “employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.” Id.
Disparate impact, in contrast, is found where an employer’s policy has the effect of disproportionately screening out a Title VII-protected group. Id. (citing Griggs v. Duke Power Company, 401 U.S. 424 (1971)). If a policy is found to have a disparate impact, the employer must “demonstrate that the policy or practice is job related for the position in question and consistent with business necessity,” or it will violate Title VII. Id.
National data has shown that African Americans and Hispanics are more likely to have criminal records than Whites. See id. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. Id. In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population. Id. The rates of incarceration of African Americans and Hispanics are also disproportionate to their numbers in the general population. The U.S. Department of Justice estimated in 2001 that 1 out of every 17 White men is expected to go to prison at some point during his lifetime. For Hispanics, the rate climbs to 1 in 6 and for African Americans, to 1 in 3. Id.
The EEOC has determined, based on the above data, that blanket exclusions on job applicants with criminal records have a disparate impact based on race and national origin, and thus may violate Title VII. Id. The onus is then on the employer to show that in the employer’s particular geographic there is no disparate impact, or that a “business necessity” exists for the policy.
By Isaac Graff and Jennifer Vorih, Esq.
These articles are for informational purposes only. They do not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This newsletter may constitute attorney advertising. This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.