December 7, 1999
CRIMINAL BACKGROUND CHECKS AND EMPLOYMENT DECISIONS
By: Susan Price-Livingston, Research Attorney
You asked the following questions about criminal background checks and rules concerning hiring convicted felons:
1. whether employers' use of such checks is increasing,
2. what occupations require such checks by law,
3. which state agencies do pre-hire criminal background checks and which disqualify job applicants with felony convictions, and
4. when employers can fire or refuse to hire individuals who have served out their prison sentences.
According to several commentators, employers are conducting more criminal background checks on job applicants and current employees than in the past. They attribute this both to recently passed legislation requiring them for some types of work and to widespread publicity about several multi-million dollar verdicts against employers who did not do so.
Although Connecticut's legislatively expressed public policy is to encourage employers to hire qualified ex-offenders (CGS § 46a-79), state laws also require criminal background checks for many whose work brings them in direct contact with children and for law enforcement and prison job applicants. They also require criminal checks of occupational license applicants in jai alai, dog, and horse racing facilities. And they allow state and local officials to check people seeking occupational licenses or permission to engage in other regulated professions, including pawnbrokers, attorneys, and Department of Environmental Protection permitees. State laws do not limit private employers' criminal background check use, but federal consumer reporting and antidiscrimination laws do.
Pam Libbey of the Department of Administrative Services (DAS) reports that the department has no policy specifying when background checks must be done for state job applicants, and each agency sets its own rules. Her search of recent DAS job specifications revealed that satisfactory background check reports, which she says include criminal history checks, were required for permanent appointment to some Liquor Control, Animal Control, Environmental Protection, Labor, Corrections, Revenue Services, Consumer Protection, State Police, Medical Examiner, Motor Vehicles, and Military department jobs. A listing of the specific positions is attached. The recently filled state positions for which a criminal conviction appears to be an automatic disqualification include environmental protection supervisor; consumer protection, drug control division director and assistant director; state police forensic science laboratory, director and assistant director; residential facility supervisor; and forensic head nurse.
Law enforcement agencies (which include Sheriff's Department court house security and transportation personnel) are the only governmental entities in the state that by law can deny employment based solely on a person's criminal history. In all other cases, state officials cannot deny felons employment, occupational licenses, or permission to engage in state-regulated professions without examining (1) the relationship between the crime committed and the job or license that the person is being considered for, (2) the convicted person's degree of rehabilitation, and (3) the time elapsed since conviction or release (CGS § 46a-80). When the state makes an adverse employment decision based on conviction information, it must give the candidate written notice of the information it relied on and the reasons for its decision. It cannot use arrest records that were not followed by a conviction or convictions that have been erased in making employment or licensing decisions, and it cannot distribute or disseminate such information in connection with an application for employment or for a permit, license, certificate, or registration (Id.).
According to some business experts, employers' voluntary use of criminal background checks is increasing. Some argue that a criminal history can be an accurate predictor of an individual's likelihood to commit a crime (Sullivan, "Employee Violence, Negligent Hiring and Criminal Records Checks," 72 St. John's L. Rev. 581 (Spring 1998)). An influential 1987 U.S. Department of Justice study of 16,000 felons released from prison in 1983 reported that 62.5% were re-arrested and 46.8% re-convicted of a felony or serious misdemeanor within three years (http://www.ojp.usdoj.gov/bjs/pub/pdf/rpr83.pdf).
Other reasons cited include employer concerns about workplace safety; business loss and bad publicity from their employees' crimes, misconduct, or incompetence; and fear of negligent hiring suits brought by these workers' victims or survivors (85 A.B.A. Journal (Mar. 1999)).
Negligent Hire Lawsuits
Negligent hire or retention lawsuits hold employers financially responsible for exposing foreseeable victims to employees who were known, or with a reasonable employer investigation would have been known, to pose a risk of harm to others (Lienhard, "Negligent Retention of Employees," 63 Def. Couns. J. 389 (1996)). While the common law generally imposes a duty on employers to perform an "adequate" pre-hire investigation (tailored to the particular job), courts have disagreed about whether this duty requires employers to conduct criminal record checks.
New York limits negligent hire liability to situations in which an employer actually knew of an employee's history of engaging in a specific type of criminal conduct (such as violent assault), yet permitted him to work under conditions in which it was foreseeable that he would repeat it. Its courts have expressly ruled that imposing liability on employers for failing to check criminal records is contrary to the state's public policy of reintegrating convicted felons into society (Ford v. Gildin, 613 N.Y.S. 139, 142 (App. Div. 1994)).
But other states, like Massachusetts, have allowed juries to hold an employer responsible for failing to investigate an employee's criminal background before hiring him. The most recent case, Ward v. Trusted Health, resulted in a $26.5 million jury verdict against the Visiting Nurse Association of Boston and its contractor, Trusted Health, after a home health aide with six prior larceny convictions robbed and murdered the quadriplegic in his care and the victim's grandmother. The court allowed the jury to consider testimony about the practices of other in-home service providers, like meter readers and telephone installers, who customarily conduct pre-hire criminal background checks (Id., No. 94-4297 (Suffolk Super. Ct.)).
MANDATORY STATE BACKGROUND CHECKS
People Working with Children
CGS § 19a-80 requires the Department of Public Health (DPH) commissioner to ask the state police and FBI to conduct, respectively, a state and national criminal background check on all prospective employees for a child-caring position in a day care center, group day care home, and family day care home and for initial applicants for a family day care home license. The law allows the commissioner to suspend or revoke a day care provider's license if any employee having direct contact with children has been convicted of (1) an offense involving the threat, attempt, or use of force or (2) any felony in which the victim is under age 18.
The Department of Social Services (DSS) commissioner, within appropriations, must ask the state police to conduct criminal background checks of unlicensed in-home non-relative caregivers receiving DSS payments (CGS § 17b-749k). The department will not pay if the provider has been convicted of any crime involving sexual assault of, or serious physical injury to a minor.
Those providing child care in retail stores (CGS § 19a-77a), public school personnel hired after July 1, 1994 (CGS § 10-221d), school bus drivers (CGS § 14-44), and employees and volunteers working at outpatient children's psychiatric and extended day treatment facilities (Regs. State Agencies §§ 17a-20-22, 17a-147-11d) must also undergo criminal background checks.
Law Enforcement and Corrections Personnel
State law also requires criminal history checks of correctional personnel applying for positions that will involve direct contact with prisoners or inmates (CGS §18-811). And all law enforcement personnel who go through the Police Officer Standards and Training (POST) program, including state and local police officers and Sheriff's Department courthouse security and prisoner transport personnel, must submit to such checks by the State Police's Bureau of Identification.
LIMITS ON EMPLOYER USE OF CRIMINAL CONVICTION INFORMATION
Fair Credit Reporting Act
Asking job applicants to indicate whether they have been convicted of a crime is permissible in all jurisdictions. But if an employer hires an outsider, such as a private investigator or a background-checking company to gather such information, the federal Fair Credit Reporting Act (FCRA, 15 U.S.C.§ 1681, et seq.) requires that the employee or job applicant first give written consent. (The law exempts employers considering applicants for positions that pay more than $75,000 and federal employers doing national security investigations of their employees or job applicants (CGS § 1681b(4).)
When an employer makes a negative decision based on the information gathered, it must specify in writing what information it based its decision on, give the affected person a copy of the report and a chance to dispute or clarify it. Employers and report preparers who violate the law can be sued for money and punitive damages and reasonable attorney's fees.
The FCRA specifies that covered reports cannot include arrest records that precede the report by more than seven years or until the applicable limitations has expired, whichever is longer. It has no limit on the age of criminal convictions that may be reported (15 USC §§ 1681(a)(2) and (5)).
Title VII of the Civil Rights Act of 1964 also appears to restrict an employer's ability to use criminal background information in the hiring process (42 USC. §2000e, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has decided that disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (Those two groups have much higher criminal conviction rates than do Caucasian men.)
The EEOC has ruled repeatedly that covered employers cannot simply bar felons from consideration, but must show that a conviction-based disqualification is justified by "business necessity." The legal test requires employers to examine (1) the job-relatedness of each conviction, (2) the nature of the conviction, (3) the number of convictions, (4) the facts surrounding each offense, (5) the length of time between the conviction and the employment decision, (6) the applicant's employment history before and after the conviction, and (7) the applicant's efforts at rehabilitation. According to the EEOC, the job-relatedness inquiry is the most important, and focuses on whether the job position applied for presents an opportunity for the applicant to engage in the same type of misconduct which resulted in the applicant's conviction (Bednar, "Employment Law Dilemmas: What to Do When the Law Forbids Compliance," 11 Utah B.J. 15 (Dec. 1998)).