Employment Law Observer

Believe it or not, individuals with criminal convictions can make a business out of trolling online job boards for job postings that express an intent to discriminate against applicants with conviction records—think job postings with “no felonies” as a qualification. Postings of this type run afoul of the Wisconsin Fair Employment Act, which prohibits employers (1) from circulating job ads and applications that express an intent to discriminate against applicants with conviction records and (2) from refusing to hire applicants because of their arrest or conviction record (among other types of discrimination directed at individuals with arrest and conviction records). Postings that violate this prohibition can cost your company a whole lot of headache and money. Penalties range from a cease and desist order to job instatement and backpay if the applicant can show he or she would have been hired but for her conviction.

On May 31, 2017, the United States Court of Appeals for the Second Circuit gave two Ex-Cons a second chance at pursuing their wrongful termination suit against their employer’s client, after New York’s highest court weighed in, advising that out-of-state entities that aid or abet employment discrimination against individuals with criminal convictions may be liable under New York State Human Rights Law (“NYSHRL”).

Earlier this week, it was announced that BMW Manufacturing Co. and the EEOC had entered into a Consent Decree, resolving one of three high-profile suits over a company's use of background checks in the hire process that had been pending since 2013. The settlement requires BMW to pay $1.6 million to roughly 56 claimants and other applicants to be identified and provide job opportunities to rejected applicants. The deal was approved Tuesday, September 8th by the South Carolina federal judge overseeing the litigation.

On June 29, 2015, New York City Mayor Bill de Blasio signed into law an amendment to the New York City Human Rights Law that requires private employers to remove criminal-convictions questions from job applications and defer background inquiries to the point of a conditional job offer. This “Ban the Box” law prohibits NYC employers from making any inquiry or statement concerning an applicant’s arrest or criminal record until after the employer has extended a conditional job offer to the applicant. The law construes the terms “inquires” and “statements” very broadly, and also expressly prohibits searches of publicly available records and many consumer reports.

We don't think about personnel files — we just have them. Everything from employment applications to benefits enrollment forms to discipline and discharge documents goes into those files. But did you know that the EEOC requires employers to keep all personnel and employment records for at least one year? 

The parent company of Chuck E. Cheese's restaurants, CEC Entertainment, Inc., has agreed to pay $1.75M to settle a class action lawsuit in California brought by applicants who claimed the company provided improper background check notices during the hiring process. 

When can an employer conduct a criminal background check on an applicant or existing employee?