BACKGROUND CHECKS & COMPLIANCE: CRIMINAL RECORDS

Under Florida law, employers could face civil liability for the harm an employee causes to a third party. For that reasons, employers might wish to conduct a thorough investigation of a job applicant’s or current employee’s criminal record. According to federal guidelines, however, federal law could impose liability on employers who base their employment decisions on criminal records.

Under Title VII of the federal Civil Rights Act of 1964 (“Title VII”), employers are prohibited from discriminating on the basis of race, color, religion, gender, or national origin. Title VII prohibits not only “disparate treatment” (i.e., refusing to hire an African American applicant based on his criminal record and instead hiring a white applicant with a comparable criminal record), but also “disparate impact.” Disparate impact occurs when the employer implements a facially-neutral policy that, in practice, has the effect of disproportionately screening out a protected group (i.e., a particular race, color, religion, gender, or national origin). For example, a policy that screens out all applicants that have ever been convicted of a felony does not, on its face, discriminate on the basis of race or color. However, in practice, the policy might have the result of disproportionately screening out African American or Hispanic applicants. Such a policy could form the basis for “disparate impact” claim of discrimination.

In April 25, 2012, the Equal Employment Opportunity Commissions (“EEOC”) issued federal guidelines based on Title VII. According to the federal guidelines, African Americans and Hispanics are incarcerated at rates disproportionate to their number in the general population. For that reason, the federal guidelines state that facially neutral policies that screen out applicants based on criminal convictions might violate Title VII if the policies are not job-related and consistent with business necessity.

According to the guidelines, policies that screen out job applicants based on criminal records should be implemented in two steps: first, the screening policy should take into account the nature of the crime, the time elapsed since the conviction, and the nature of the job; and second, the employer should provide an opportunity for individualized assessments of those applicants that were screened out (i.e., employers should ask the applicant to show why he or she should not be excluded and assess that information in light of the job).

Because the federal guidelines are based on arrest and incarceration rates of the general population, some courts have rejected the federal guidelines and found that screening policies based on criminal records do not alone support a disparate impact claim. Recently, a federal court in Maryland held that “[t]o use general population statistics to create an inference of disparate impact, the general populace must be representative of the relevant applicant pool. … The general population pool ‘cannot be used as a surrogate for the class of qualified job applicants, because it contains many persons who have not (and would not) be’ applying for a job with Defendant.” EEOC v. Freeman, 961 F. Supp. 2d 783, 798 (D. Md. 2013).

While federal guidelines seem to limit an employer’s ability to make employment decisions based on criminal convictions, Florida tort law could impose liability on employers who fail to conduct adequate background checks on job applicants and current employees. Under Florida law, employers generally owe their customers a duty to exercise reasonable care in hiring and retaining employees. A customer who is harmed by an employee’s actions can recover damages from the employer if the customer can show the following: (1) the employer was required to make an appropriate investigation of the employee and failed to do so; (2) an appropriate investigation would have revealed the unsuitability of the employee for the job; and (3) it was unreasonable for the employer to hire or retain the employee in light of the information the employer knew or should have known.

Whether an employer is required to perform an extensive background investigation under Florida law depends on the type of work the applicant/employee will perform. If, for example, the applicant’s job duties will require only incidental contact with others, then obtaining past employment information and personal data during the initial interview may be sufficient. If, however, the employee is to have constant contact with the public, the employer might be required to conduct a more thorough background check, including a criminal background check, to avoid liability.

To avoid liability under Florida law, employers should conduct an appropriate pre-employment investigation of job applicants. The nature and duties of the job will determine the comprehensiveness of the investigation. If the employer believes that a criminal background check is required, the best practice would be to ensure that any neutral screening policy takes into account (1) the nature and gravity of the convictions; (2) the time that has elapsed since the conviction; and (3) the nature of the job. Furthermore, the employer should provide an individualized assessment for each screened out applicant to ensure the policy, as applied to each applicant, is job-related and consistent with business necessity.

Peter T. Mavrick has successfully represented many employers in labor and employment matters. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.