Advocates may quarrel with that characterization, but the fact remains that this change to the Municipal Code (Chapter 14.17 – Use of Criminal History in Employment Decisions) offers specific protections to those with a criminal history – regardless of whether they are otherwise protected based on race, national origin, etc. If it looks like a duck and quacks like a duck….
Specifically, the ordinance says:
Employers shall not carry out a tangible adverse employment action solely based on an employee’s or applicant’s criminal conviction record or pending criminal charge, unless the employer has a legitimate business reason for taking such action.
A legitimate business reason shall exist where, based on information known to the employer at the time the employment decision is made, the employer believes in good faith that the nature of the criminal conduct underlying the conviction or the pending criminal charge either:
1. Will have a negative impact on the employee’s or applicant’s fitness or ability to perform the position sought or held, or
2. Will harm or cause injury to people, property, or business assets, and the employer has considered the following factors:
a. the seriousness of the underlying criminal conviction or pending criminal charge, and;
b. the number and types of convictions or pending criminal charges, and;
c. the time that has elapsed since the conviction or pending criminal charge, excluding periods of incarceration, and;
d. any verifiable information related to the individual’s rehabilitation or good conduct, and;
e. the specific duties and responsibilities of the position sought or held, and;
f. the place and manner in which the position will be performed.
Additional protections include:
1. Employers shall not inquire about or conduct a criminal background check until after the initial screening of applications or resumes.
2. Employers shall not carry out a tangible adverse employment action solely based on an employee’s or applicant’s arrest record – though there is some allowance for adverse action taken as a result of the conduct associated with arrests – whatever that means??
3. Before taking any tangible adverse employment action based on the individual’s criminal history, the employer shall identify to the applicant or employee the record(s) or information on which they are relying and give the applicant or employee a reasonable opportunity to explain or correct that information. This applies whether or not a “consumer report” is the source of that information. Employers are further required to hold the position open for at least two days to afford the individual an opportunity to respond.
The most worrisome element of this legislation is the ambiguity of the phrase legitimate business reason – and the notion that our judgment as employers may be second-guessed by the Seattle Office of Civil Rights (SOCR).
If there is good news in any of this, it is that the ordinance specifically states that it is not to be construed as creating a private civil right of action. The bad news is that enforcement authority is vested in the dreaded SOCR – which has the authority to initiate investigations and enforcement procedures on its own, without a complaint from a Charging Party.
The “exclusive remedy” available is said to be agency (SOCR) “assistance” for the first violation, $750 for the second and $1,000 for the third and subsequent violations. However, the SOCR examiner may order the respondent to pay the Agency’s attorney’s fees – which raises the stakes considerably. This provision was vehemently opposed by the business community, notwithstanding assurances by Councilman Harrell that the same provision exists in other ordiannces but has never been used. Trust me!?
The ordinance takes effect on November 1, 2013.
The question becomes, how do we (as employers) navigate this minefield – short of relocating? How do we adequately vet prospective employees (a business imperative) while insulating ourselves from bogus claims?
It is noteworthy, that the bill has much in common with the recently update EEOC Guidance (regarding use of criminal records for employment purposes) and evolving HR “best practices” such as:
1. Avoiding blanket policies regarding criminal records;
2. Removing the criminal records “box” from the initial employment application;
3. Waiting to conduct criminal background checks until late in the process – ideally subsequent to a conditional offer;
4. Providing Notice of Adverse Action prior to the final decision – already required by the FCRA.
5. Considering the nature of the offense – making a reasonable judgment as to the relationship between the offense and the position – and then documenting that decision.
6. Ignoring arrest records (alone) and most convictions, the date of final disposition of which is over 7 years old.
What we cannot do is run scared – underwrite applicants any less vigorously than before – since doing so will have a profoundly negative impact on the business and expose us to negligent hiring lawsuits.
It should be relatively rare that criminal history comes into play in an adverse employment action. Focusing intensely on employment history, skills, experience, and job and interview performance will drive the vast majority of decisions. That is why the best thing you can do to protect yourself is to refrain from asking about criminal history or conducting a background check until as late as possible in the process – ideally subsequent to acceptance of a conditional offer. You cannot be accused of basing a decision on criminal history if you have no knowledge of that history when the (albeit conditional) decision is made.
Frankly, it makes good business sense to consider the nature (and timing) of an offense in those rare instances when your best candidate presents with a criminal past. If you decline them, document the decision – including consideration of those factors outlined above – and you should be just fine!
Contact Moco, Incorporated or visit us at www.moco-inc.com for more information about employment screening best practices.