Federal laws Concerning Criminal Background Checks

Federal regulations forpublic jobholder qualifications are growing. This is due to the increased federal effort to reduce risks to United States’ national security. In particular, there have been a number of new laws requiring criminal background checks for jobholders. Many of these new federal laws operate through federal to state to county pass-through funds, and may mandate criminal background checks on job applicants.

Despite these mandates, the Equal Employment Opportunity Commission has a longstanding rule (since 1987) under Title VII of the Civil Rights Act which prohibits employment policies that exclude individuals solely on the basis of a prior conviction record. They must also show that they considered the following consistent with equal opportunity guidelines (EEOC Notices N-915 and N-915-061). Federal laws require equal hiring consideration be given for all applicants when comparing applicants with no convictions with applicants who have past convictions which are older than 7 years.

Generally, record of an arrest is presumed not to be job relevant by the EEOC unless evidence shows the applicant actually engaged in the conduct for which he or she was arrested (and the best evidence of that is confirmation of a conviction for that conduct), and that conduct can be shown to be directly relevant to the job duties.

Since specific Colorado and federal laws prohibit a county from having a blanket policy of denying employment to persons with criminal histories; how is a county to handle this apparent conflict?

The law requires an individualized assessment of a person’s history in determining whether hiring someone with a criminal history is appropriate for a particular job class. Simply put, even a public employer must show a “business necessity” for refusing to hire a person on the basis of a prior criminal conviction. If a law specifically forbids hiring an applicant with certain convictions for specific job classes, post a copy of that legal requirement in a manner that is available for review to job applicants.

If the state or federal agency conducts the background clearance and determines the pass/fail status of the applicant, keep all records relating to their decision, and require their decision to be in a written form. If there is an individualized decision by a state or federal agency that prevents the employment of a particular person with a particular criminal history, make sure you get a written confirmation of their individualized decision regarding that person. Do not accept the decision by a phone call! A county can rely on this written decision on a particular applicant as a “business necessity” if it is a legal requirement for that job class.

Keep a copy of the individualized decision in the applicant’s file for a period of two years, or four years if it is a current employee. If the state or federal agency makes the actual employability decision and the county keeps documentation of their decision, the county will not be liable for a failure to hire claim.

On the other hand, if the law states that the county must do the background check and make the individualized decision, then a county may have potential liability for refusal to hire someone if a pattern develops in violation of the EEOC rules (for example, if a county policy to not hire persons with felony convictions for drugs results in the county hiring females with drug misdemeanors but not males with drug felonies, the county might have to prove job necessity for felonies but not misdemeanors.).

Therefore, in making the decision to hire a convicted person, a county should weigh the following factors and balance them against the actual risks of hiring for a given job:

  1. The nature or type and gravity of the crime conviction (in other words, what conduct or behavior were they convicted of?); and
  2. The time that has passed since the crime conviction and/or completion of the sentence (do they appear to be rehabilitated?); and
  3. The nature or type of job class and duties which are held or sought by the applicant (are the facts of the conviction, if recent, related to the duties, skills, or qualifications for the job?).

The third factor requires knowledge of the federal or state rules dictating that a background screening be done. In some cases, the state will make the determination as to whether a candidate “passes” the criminal check. In most cases, however, the actual decision on the employment record is passed down to the local county.

For those job classes for which the county must do a criminal background check and make the decision, specific criminal history guidelines should be drawn up for each job class. Anyone called upon to make a hire decision should understand which classes of convictions would preclude hiring and which classes would allow discretionary hiring. For example, the guidelines might state that any nonviolent felony which does not involve national security and is more than three years old does not disqualify a person for employment in a range of professional of jobs. Another example is that the guidelines might specify that any felony conviction under 5 years old would disqualify a person from holding a county detention officer job if the county transports federal prisoners (see below).

The following is a brief list of federal laws which may bar persons with convictions from working in a public job:

  • Convictions for offenses involving dishonesty, breach of trust, or money laundering disqualify a person from working for institutions that are insured by the FDIC and, in some cases, in the insurance industry without the permission of a regulatory official.
  • Certain classes of felonies bar persons from working for positions in a union or other organization that manages an employee benefits plan, for a period of 13 years.
  • Certain types of felony convictions prevent persons from providing healthcare services for which they will receive payment from Medicare under 42 USC 1320a-7.
  • Federal laws require criminal history background checks for persons providing care for children under 42 USC 13041 and 5119(a) and for working with other persons who may be at risk of harm or disabled persons in the absence of a state statute approved by the USAG under PL 92-544. (PL 103-209, amended by PL 103-322 and P L 105-251, 42 U.S.C.5119a.
  • Felony convictions or domestic violence convictions prevent persons from being employed to transport prisoners under 42 USC 13726(b).
  • Certain criminal convictions may also prevent persons from being employed at airports under new federal laws to require operators and carriers to fingerprint and background check employees or applicants for positions having unescorted access to air carriers, foreign air carriers, or to secured areas of US airports. 49 USC 44935 and 44936.
  • Criminal convictions may also prevent an applicant from working in law enforcement, in processing vital records, in being an emergency responder with federal duties, and in transporting hazardous materials. “Includable offenses” mean serious and/or significant adult and juvenile offenses. Arrests and court actions on non-serious charges such as drunkenness, vagrancy, disturbing the peace, loitering, suspicion or investigative arrests, and most traffic violations (except for DUI, drug violations, or hit and run traffic violations) are not considered sufficiently serious under most federal background checks to disqualify an applicant.
  • However, a recent Federal Transportation Administration memo defined “serious offense” to include arrests and non-paid traffic fines for the purposes of restricting CDL and Haz-mat licenses. This list is not intended to be all-inclusive.

Federal Privacy Act

The Federal Privacy Law mandates strict privacy rules regarding the use and sharing of many forms of individual information, including criminal background information and personnel information collected for purposes of evaluating job applicants for employment. The Privacy Act applies to information no matter how derived, which is collected, stored, or disseminated by a non-federal agency (defined as any state or local government which receives records contained in a system of records from a source agency for use in a matching program). . This Federal Privacy Act provides a private right of action, including attorneys’ fees, to citizens suffering harm on account of a violation of this act by any agency, defined in 5 USC Subsection 551(1).

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