Criminal Background Checks
Laura Wulf, Assistant AttorneyGeneralJohn C. Jaquish,Assistant Attorney GeneralOctober 4,2017
What is the statutory authority for doing CBC’s?Permissible v. MandatoryWhat are the different kinds of checks?Potential pitfalls of collecting CBC dataClimate regarding CBC’s in Washington
TOPICS TO BE COVERED
PERMISSIBLE CRIMINAL BACKGROUND CHECKS
(2) [a] personmaybe denied employment by the state of Washington . . . by reason of a prior conviction of a felony ifthe felony for which he or she was convicted directly relates to the position of employment sought . . . and the time elapsed since the conviction is less than ten years.RCW 9.96A.020(2), emphasis added.
MANDATORY CRIMINAL BACKGROUND CHECKS
Washington lawrequiresa criminal background check if aprospective employee “will or may have unsupervised access to children under sixteen years of age or developmentally disabled persons or vulnerable adults during the course of his or her employment or involvement with the business or organization.” RCW 43.43.830(2)(a).
DSHS is required todenyemployment to individuals who have unsupervised access to children and vulnerable adults and who have been convicted of certain crimes or subject to findings of abuse or neglect of a child or vulnerable adult. RCW 43.43. The procedures for inquiring about and reviewing background checks for these types of “covered positions” are found in the DSHS “Guidelines for Conducting Employee Background Checks.”
IRS Requirements For Criminal Background Checks
Increasingly IRS has begun to require criminal background checks for employees who have access to confidential information provided by the IRS.Agencies affected have included DSHS, DOR, and ESD.OFM has requested legislation to provide agencies with authorization to require these criminal background checks.
SOURCES FOR CBC’s
Washington State Patrol
Washington Access To Criminal HistoryReports “WATCH” use SSN’s, DOB, DL, names and aliases.Generally only provide conviction data not other information e.g. arrests
Use fingerprints to search the national crime informationcenter interstate identification index. Must have statutoryauthority.
Avoiding Potential Pitfalls of CollectingCBC Information
Under Title VII of the Civil Rights Act of 1964 it is unlawful to discriminate in employment based on race, color, religion, national origin, or sex. 42 U.S.C. § 2000eet seq. According to the EEOC, national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. Therefore, caution is required to avoid disparate treatment and/or disparate impact when using background checks. Of particular concern are automatic disqualifiers. EEOC Enforcement Guidance, Number 915.002, at 1. The full text of the guidance can be found online athttp://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf.
The EEOC offers the following best practices foremployersto follow when utilizing criminal historyinformationin employment decisions:Eliminate blanket policies or practices that excludeindividualsfrom employment based on having anycriminalrecord, unless required by state or federal law.Develop a Policy.Limit Inquiries about criminal records.Keep information about applicants’ and employees’criminalrecords confidential.
“Ban the box” legislation- passed in other statesbut not proposed legislation in Washington.
Certificate of Restoration Opportunity (“CROP”)Legislation passed in 2015 in Washington -“thelegislaturefinds that employment is a key factor tothesuccessful reintegration to society of peoplewithcriminal histories, and is critical to reducingrecidivism, promoting public safety, andencouragingpersonal responsibility.”
The Governor has also asked state agencies tofindwaysto help facilitate “increased state employmentopportunities.” Executive Order 16-05 “Building SafeandStrong Communities Through Successful Reentry.”
Develop a narrowly tailored written policy and procedures for screening applicants and employees for criminal conduct.Identify essential job requirements and the actual circumstances under which the jobs are performed.Determine the specific offenses that may demonstrate unfitness for performing such jobs.Determine the duration of exclusions for criminal conduct based on all available evidence.
Hiring Managers: Developing a Policy
Include an individualized assessment for targeted screens.Document the justification for the policy and procedures (and keep records on file).Note and keep a record of consultations and research considered if crafting policy and procedures.Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.