This is the fifth of a seven-part series describing "Hot Employment Topics for 2014." Part V focuses upon "Use of Arrests and Convictions in the Employment Process."
One hot topic in 2014 will be the issue of employer access to, and use of, arrests and criminal convictions in the workplace, particularly after the highly publicized effort by the Equal Employment Opportunity Commission in 2012 and 2013 to regulate hiring by opining that use of arrests and convictions to disqualify individuals for employment potentially ran afoul of Title VII of the 1964 Civil Rights Act. At the time, the EEOC indicated it was adopting the "guidance" in question because in its view:
The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.
Regarding arrests, the EEOC did acknowledge that:
An employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
As for convictions, the EEOC stated:
In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision. California and Texas have both recently adopted legislation related to the interplay of arrest or conviction records with the hiring process.
California. California enacted Senate Bill 530, which amended Section 432.7 of the Labor Code, which became effective on January 1. This Bill bars public and private employers from asking an applicant to disclose information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law. The Bill would preclude an employer from considering such information as a factor in the hiring or retention process.
Texas. By contrast, the Texas Legislature enacted in 2013 Texas House Bill 1188, which added Chapter 142 to the Texas Civil Practice and Remedies Code, and this law became effective June 14, 2013. The statute protects an employer from a claim for negligent hiring or supervision "based on evidence that the employee has been convicted of an offense."
However, recognizing that employers should not be completely absolved of responsibility for the hiring of a person with a criminal conviction, the Legislature also provided that the new statute did not preclude a cause of action for negligent hiring if the employer knew of the conviction AND the employee was convicted of:
an offense that was committed while performing duties substantially similar to those reasonably expected to be performed in the employment, or under conditions substantially similar to those reasonably expected to be encountered in the employment, taking into consideration the factors listed in Sections 53.022 and 53.023(a), Occupations Code, without regard to whether the occupation requires a license;
an offense listed in Section 3g, Article 42.12, Code of Criminal Procedure; or
a sexually violent offense.
Employers counsel are well-advised to stay abreast of this rapidly evolving area of the law.
To read previous editions of this e-Alert series, click the links below:
Part I: The New World of Disabilities Discrimination
Part II: After The Defense of Marriage Act
Part III: Trade Secrets in the Workplace
Part IV: Social Media in the Workplace