INSIDE BACKGROUND SCREENING
By Les Rosen
New California Law Significantly Impacts Use of Past Criminal Records by Employers during Background Employment Screening
A new law in California that took effect January 1, 2014 – Senate Bill No. 530 (SB 530) – provides significant new protection to ex-offenders who committed crimes, including felonies, when it comes to job hunting and what employers can legally discover or use. The new law prohibits an employer from asking about, seeking, or utilizing criminal convictions that have been judicially set aside. Employers violating the new prohibitions can face civil penalties and even misdemeanor criminal charges if done intentionally. It also allows a convicted person to get a case expunged sooner. The full text of California SB 530 is available at
http://www.leginfo.ca.gov/pub/13- 14/bill/sen/sb_0501-0550/sb_530_bill_20131010_
chaptered.htm.
The new law explicitly prohibit employers from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed. The current law already provided protection when it came to an arrest that did not result in a conviction (although it permits employers to utilize a case that is currently pending and not yet resolved.)
Employers need to be assured that any screening firm they utilize has a full understanding of California law and does not provide an employer with any information that an employer cannot legally ask, find, or utilize in employment. This new statue again demonstrates that background screening is no longer focused on just providing data. Background screening it is a complex and highly legally regulated professional service that requires knowledgeable professionals.
Its’ no longer the vending machine model where you can say ‘Here’s a dollar; give me a piece of data. Screening is squarely in the realm of what can employers legally use; how can they legally obtain it; what is the legal standard of accuracy so it’s usable; what are the legal aspects of even using it in the first place.
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Beyond Credit Reporting: The Extension of Potential Class Action Liability to Employers under the Fair Credit Reporting Act
The provisions of FCRA apply to any business entity that seeks to use a “consumer report” – which broadly includes anything from a credit report to a criminal or even motor vehicle background check – for any “employment purposes.” The consequences of a FCRA violation can be substantial; the statute provides for a civil private right of action and permits recovery of actual damages, statutory damages, punitive damages, and attorneys’ fees and costs. As with many federal consumer protection statutes, the stakes are even higher in a putative class action. This risk includes potential class liability for damages, which could include up to $1,000 in statutory damages per class member for “willful” violations, in addition to potential punitive damages. And, unlike other federal consumer protection statutes, there is no cap on the recovery of statutory damages in a FCRA class action. Not surprisingly, there has been an increase in the number of FCRA putative class actions filed against employers for their purported use of consumer reports. For these reasons, any business entity that collects background information for prospective or current employees must be aware of the requirements of FCRA and should design its employment practices in compliance with those requirements.
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Did you know? Criminologist Shawn Bushway of the University at Albany-SUNY, research shows that the type of crime a job applicant has committed is often less relevant than how long ago he committed it. Mr Bushway found that likelihood of committing a crime narrows to almost nothing after enough time—around 13 years.
Source: PI Magazine, November/December edition, Criminal Records Are Becoming the New Hot Potato
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