Confessions of an Adult Employment Law Attorney

Confessions of an Adult Employment Law Attorney

This is always an interesting time of year. It’s spooky season, yet holiday season is right around the corner. One minute you’re perusing scary movies on Netflix, and the next, you’re catching a trailer of an amnesiac Lindsay Lohan looking for redemption – and love – in a ski town.

We were naturally reminded of this fear-redemption dichotomy when reading about the recent enactments added to Philadelphia’s Fair Criminal Record Screening Standards Ordinance . . . naturally.

You see, a number of states and cities have versions of this law – commonly referred to as “ban the box” or “fair chance” laws – which limit employers’ ability to consider criminal records when making employment decisions. Like Lindsay Lohan circa 2022, proponents of these laws tout the fact that everyone likes a redemption story; and like Lindsay Lohan circa 2013, opponents of these laws worry less about redemption and more about risk management.

In this edition, we’re going to give a refresher on these laws and some practical tips . . . and yes, there will be LiLo jokes. 

Let’s start with the basics. While the specifics vary depending on jurisdiction, these “Fair Chance” laws typically include three main restrictions/rules: 1) employers are precluded from running criminal background checks until a conditional offer of employment is given; 2) there is a restriction on the relevant time period a search can cover; and 3) an individualized assessment of criminal records must be performed before any adverse actions are taken.

Conditional Offer. Despite being the most straight forward of the rules, you’d be surprised at how often employers get this one wrong. While you’re free to check references and conduct extensive questioning during the application process, if you want to check someone’s criminal records – you need to make a conditional offer of employment first (and yes, please do this in writing). Then get consent to run a criminal background check.

Time Period Restrictions. While most of you are (we hope) familiar with the Fair Credit Reporting Act’s 7-year restriction on searches, many states have separate laws that limit the time period that is permitted to check for criminal records. In California (you just knew Cali was finding its way into this post), background check providers cannot report results where the conviction or release is more than seven years old, unless an exception applies. Same with New York, Philadelphia, and several other states and cities.

Individualized Assessment. Ok – you’ve given a conditional offer, got consent, ran a targeted background check that complied with your state’s lookback laws . . . and now you’re wondering what to do after finding out that butter is a carb the candidate has a criminal record. This is the most crucial, and most complex, step. Please for the love of Regina George do not have a blanket policy against hiring anyone with a record, as that’s a sure-fire way to get sued (we’re not saying there are people who scan job ads for this language with the intent to file lawsuits . . . but we’re also not not saying that). Instead, you typically must conduct some form of an individualized assessment to determine how the prior conviction impacts the job. For example, in New York, the Fair Chance Act requires you to assess factors like the seriousness of the offense, the time since the offense, and the relationship of the crime to the job’s duties. If someone was recently convicted of embezzlement, pulling the offer for a bank teller is likely defensible. If that same person was not-so-recently convicted of embezzlement and is applying for a mechanic job, then you have a better chance of making fetch happen than you do successfully pulling that offer.

This is admittedly a tricky area and one where we see countless employers trip up. But unless you want your hiring process to turn into a bigger fiasco than the production of Georgia Rule, you’d be wise to implement some practical takeaways:

• Don’t skip the conditional offer. Your hiring team must know that a written conditional offer must be secured before running any criminal check.  
• Trust, but verify, your vendors. If you’re using a Consumer Reporting Agency, confirm they are actually complying with the dizzying array of state-specific lookback periods.
• Assume every file is Exhibit A. If you’re hiring in a fair chance jurisdiction, you must conduct a documented individualized assessment on every candidate before pulling an offer. (And yes, you should probably loop in counsel for this one.)

Your hiring process should be comprehensive, but also clear enough that it’s not harder to follow than the plot of I Know Who Killed Me.

Hope everyone has a great weekend – maybe even including some Freakier Friday action. And as always, if you’ve got questions, you know we’ve got answers.

~ The W + K Team