California employers: take notice. On July 24, 2023, the Office of Administrative Law approved changes to the Fair Employment and Housing Act (FEHA) regulations governing how California employers can use and consider criminal history in employment decisions. These new changes, modifying Cal. Code Regs. Tit. 2, § 11017.1, go into effect on October 1, 2023.
Continue Reading California Employers: Updated Regulations for Use of Criminal History in Hiring Decisions Go into Effect October 1, 2023
Employers who conduct background checks on applicants or employees must comply with the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. Among other things, the FCRA requires employers who procure criminal background reports (“consumer reports”) to provide applicants and employees with a Summary of Rights form as prepared by the Consumer Financial Protection Bureau (CFPB) when providing them with the FCRA-required pre-adverse action notices. See 15 U.S.C. § 1681b(b)(3)(A)(ii).
Continue Reading Compliance Update for U.S. Employers Conducting Criminal Background Checks in the Hiring Process
Uber Technologies, Inc. has been sued in a class action lawsuit alleging the company’s use of criminal background checks discriminates against Black and Latinx drivers. The complaint, filed in the U.S. District Court for the Southern District of New York on April 8, challenges Uber’s “unlawful use of criminal history to discriminate against its drivers in New York City as well as its brazen noncompliance with human rights and fair credit laws.”
Continue Reading Gig Employer Hit with Background Check Class Action
In January 2021, New York City amended the Fair Chance Act to expand protections for both applicants and employees with criminal histories. The amendments take effect July 29, 2021, adding additional protections for workers in the state.
Continue Reading New York City Expands Protections For Applicants and Employees With Criminal Histories
Imagine this: you are an employer in California, and you recently hired a new employee. You ran your own background check, which did not turn up any criminal convictions. However, the employee’s job duties include submitting online applications to a government agency, which requires the employee to complete a Live Scan background check with the Department of Justice. The Live Scan reveals that the employee has a past criminal conviction that will prevent her from submitting the applications. You terminate the employee, and she tells you the conviction was judicially dismissed. What do you do?
Continue Reading Dismissed Criminal Convictions in California
Nationwide, 36 states and over 150 municipalities have adopted “ban the box” laws that prohibit employers from asking applicants about their conviction or arrest records on their initial applications. This article provides updates on recent changes and updates in Hawaii, California, and St. Louis, Missouri.
Continue Reading More States and Localities Enact and Strengthen Ban the Box Laws
Dollar General and the Equal Employment Opportunity Commission recently settled a six-year-old Title VII lawsuit. The EEOC brought its race discrimination claim on behalf of a Charging Party and a class of Black job applicants, alleging that Dollar General’s use of criminal justice history information in the hiring process had a disparate impact on Black applicants.
Continue Reading The EEOC Settles Six-Year-Old Lawsuit Attacking Background Check Policy
The United States District Court for the Western District of New York recently granted an early dismissal of a class action lawsuit prior to class certification. According to plaintiffs in the case, the employer’s criminal background check policy for job applicants illegally discriminated against African-American job candidates.
Continue Reading Federal Court Finds That General Statistical Data Is Not Enough to Show That No-Conviction Hiring Policy Was Discriminatory
After a nearly six-year legal battle, the Fifth Circuit has struck down the U.S. Equal Employment Opportunity Commission’s 2012 Enforcement Guidance on the consideration of criminal history in employment decisions. On August 6, a three-judge panel held that the Guidance was a substantive rule the EEOC had no authority to issue and that the EEOC can no longer enforce the Guidance or treat it as binding in any respect.
Continue Reading EEOC Criminal History Guidance Struck Down by Fifth Circuit
In a positive development for employers, the California Court of Appeals affirmed summary judgment for an employer in a class action alleging willful violations of the Federal Fair Credit Reporting Act.
Continue Reading California Court of Appeals Bolsters Willfulness Defense to FCRA Actions