The Use of Criminal History in Employment Decisions

Summary:

Effective July 20, 2013, employers who have any employees who work at least 50% of the time in the City of Seattle no longer can include a criminal history question on their employment applications. They also cannot automatically or categorically exclude all individuals with any arrest or conviction record from employment.

Employers may perform a criminal background check on a job applicant or require a job applicant to provide criminal history information, but only after completing an initial screening of applications or resumes to eliminate unqualified applicants. Employers may inquire about conduct related to an arrest record but cannot carry out a tangible adverse employment action solely based on the conduct relating to an arrest or criminal conviction record unless the employer has a legitimate business reason for taking such action.

Most Seattle employers will need to change their employment applications, pre-hire processes, and possibly their job descriptions and job postings to meet the requirements of the Seattle ordinance. They should also implement documentation procedures for situations where applicants with criminal histories are not hired.

Suggested Next Steps for Affected Employers:

Employers who have any employees working at least half time in Seattle should change their application forms to be consistent with the ordinance, such as by removing any questions about criminal history unless there is some applicable state or federal law that conflicts with the City of Seattle ordinance.

Employers whose employees have unsupervised access to children under the age of 16, developmentally disabled persons, or vulnerable adults should still include the criminal history questions required by RCW 43.43.834 in their employment applications and can still obtain criminal background checks from the Washington State Patrol under RCW 43.43.832.

Employers who have background checks done by a third party vendor or who outsource parts of their hiring process should make sure the vendor understands the legal requirements.

Employers will need to first identify which candidates are qualified for the position before obtaining the criminal history information. To do so, employers should establish and document what the minimum qualifications are for the position prior to beginning the hiring process. This can be done through development of job descriptions that list all the duties the successful candidate must be able to perform and any other qualifications that are necessary for the position, by listing all of the minimum qualifications in the job posting, or both.

Employers who want to rely on criminal history checks to deny employment should first review their job descriptions and job duties to determine whether there is a legitimate business reason. The factors that go into determining a “legitimate business reason” are set forth in SMC 14.17.010.

Some of the factors for determining whether there is a legitimate business reason for denying employment require obtaining information from the applicant about his or her criminal background. Since such inquiries are prohibited until after the employer has determined that the applicant is qualified for the position, the employer should have a step in the hiring process for obtaining this information from qualified applicants if the employer is considering using the criminal history to deny employment.

The ordinance requires the employer to give the applicant two business days to the applicant to respond, correct or explain the criminal history information.

The ordinance does not prohibit employers from making employment decisions based on dishonesty; in other words, if an applicant or employee is dishonest about their criminal history, that can still be a basis for denying employment.

Incorporating the requirements of the ordinance into the employer’s hiring process is not a one-size-fits-all proposition so employers may want to have their hiring processes reviewed by an employment attorney to be sure they are in compliance.
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Karen Sutherland can be reached at ksutherland@omwlaw.com. This post is a brief summary of a complex law and is not legal advice and should not be relied on.

Supreme Court Clarifies Sexual Harassment Law

On June 24, 2013, the United States Supreme Court issued rulings in Vance v. Ball State University that provide valuable clarity in determining who will be considered a “supervisor” for purposes of harassment claims. The Court held that an employee may be considered a “supervisor” only when the employer has empowered the employee to take tangible employment action against the individual claiming harassment. In Vance, the Court ruled that the ability to take “tangible employment actions” against the complaining worker is the “defining characteristic” of supervisory status.

The distinction is important. Employers are exposed to substantially more risk of liability when a “supervisor” is accused of harassment. Under prior Court decisions, if a supervisor engaged in harassment that culminated in a tangible employment action, the employer was strictly liable for the supervisor’s actions. If harassment is committed by a non-supervisory co-worker, a claimant has a more difficult burden and must show that the employer was negligent in allowing the harassment in order to establish liability. With non-supervisory workers, the employer may also have an absolute defense to any claims if steps were taken to prevent or correct problems and the complaining worker unreasonably failed to take advantage of avenues for internal investigation and resolution.

Prior to Vance, federal appellate courts had been split on the method for determining supervisory status with some courts following a significantly broader test applied by the EEOC. Under the EEOC test, supervisory status depends on whether an individual is able to exercise significant direction of another’s day to day work. As stated by the Court in Vance, the EEOC test allows for “remarkable ambiguity” as determining whether an individual is a supervisor and inherently calls for a case-by-case determination heavily dependent on particular facts and circumstances.

This “remarkable ambiguity” was significant to the Court in rejecting the EEOC test and imposing the “tangible employment action” standard. In Vance, the majority expressed the expectation that a test requiring the ability to take “tangible employment action” would be easily workable, providing courts, employers and employees clarity for more efficient resolution of questions on supervisory status.

Going forward, employers should consider the following in light of the Vance decision:

• Employers should assess and clarify as necessary the authority of individuals who might qualify under the Vance test but are not clearly identified as “supervisors.” The key question is whether an individual has authority to impact another worker’s employment status including hiring, firing, promotion, and work assignments. Both employers and employees should know just who is a “supervisor” in light of Vance.

• Employers should ensure they have effective anti-harassment and anti-discrimination policies in place along with a procedure for presenting and investigating complaints of harassment or discrimination. Employers should also consider training all employees in the policies and what to do if there may be a violation.

• All employees qualifying as “supervisors” should be aware of their status as such and trained on anti-harassment and anti-discrimination practices. Taking steps to ensure that workers qualifying as “supervisors” know and apply best practices will help reduce both risk and complaints, and will help provide evidence to defeat any claims that may come.
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This post was written by Patrick Pearce, a Member of OMW’s Employment and Labor Law Practice Group. He can be reached at ppearce@omwlaw.com. This is a summary of a complex area of the law and is not legal advice and should not be relied on for any purpose.

Marijuana at Work: Washington’s Initiative 502

In light of the passage of Initiative 502, can Washington State employers continue to have policies prohibiting being under the influence of, or possession and use of, marijuana at work?  The short answer is “probably yes.”  Just because something is legal does not mean that employers are required to allow it.  The text of I-502 does not prohibit employers from having policies limiting or prohibiting marijuana possession or use.  The relevant portions of the new law decriminalize certain aspects of possession and use under state law, but there is nothing in I-502 that would prohibit an employer from having rules about intoxication, possession and/or use of marijuana just like employers can limit other legal substances, such as by prohibiting the consumption of alcohol or being under the influence of alcohol during work hours, or by prohibiting employees from using tobacco products. 

The Washington State Supreme Court addressed the issue of marijuana use in employment in a slightly different context after the Washington State Medical Use of Marijuana Act (“MUMA”) was adopted.  In Roe v. Teletech Customer Care Management, the Court decided that MUMA does not provide a private cause of action for discharge of an employee who uses medical marijuana, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy. 

MUMA is different from I-502 in that MUMA was amended by the legislature to read, “Nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment.”  The Roe case did not involve on-site use, but was about an employee who tested positive for marijuana due to off-site use under a prescription for medical marijuana.  The employee argued that the reference to on-site use in MUMA meant that an employer had to accommodate off-site marijuana use.  The Supreme Court rejected this argument. 

 Although I-502 does not mention employment at all, it is likely that the reasoning the Court applied in the Roe case would be applied to use after I-502 goes into effect.  Ultimately, this is an issue to be sorted out by the courts and the legislature, but for the time being, it appears likely that a workplace policy prohibiting the possession or use of marijuana would not be illegal under I-502.

Additionally, commercial drivers license (“CDL”) requirements are federal, and given the Drug Free Workplace Act and other federal requirements, there is support for employers covered by these laws if they have consistently applied their policies.

Limitations On Use of Genetic Information By Employers

In November 2010, the EEOC issued final rules under the Genetic Information Nondiscrimination Act (“GINA”). GINA prohibits employers with 15 or more employees from requesting, requiring, or purchasing genetic information of an individual or family member of the individual, except as specifically allowed.  An employer should not assume that since it rarely requires genetic testing that these regulations do not apply.  Genetic information can also include “family medical history.”  Therefore, employers may inadvertently gather family medical histories for FMLA leave administration, in the course of administering a wellness or insurance programs, or when conducting fitness for duty examinations.  Although there are exemptions for the acquisition of FMLA material and other incidental acquisitions of genetic information, employers should consult with their  attorney about any family medical histories or genetic information that it acquires.

For more information about GINA visit www.omwlaw.com.

Breastfeeding Moms at Work

The Fair Labor Standards Act (FLSA) was recently amended to allow nursing mothers to take unpaid breaks to express breast milk at work.  This amendment is codified at 29 U.S.C. 207(r)(1).  It requires an employer to provide a “reasonable” break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.  It also requires the employer to provide a place other than a bathroom that is shielded from view and free from intrusion from co-workers and the public which may be used by an employee to express breast milk. 

Employers with fewer than 50 employees are not subject to the statute’s requirements if they would impose an “undue hardship” by causing the employer significant difficulty in relation to size, financial resources, nature, or structure of the employer’s business. 

The amendment to the FLSA does not preempt any state laws that provide greater protection.  Washington State, for example, has a law codified as  RCW 43.70.640 that encourages (but does not require) employers to adopt a breastfeeding policy and provide a sanitary, private location for expressing beast milk and refrigerated storage, which is explained in an article published by LegalVoice called “Breastfeeding in the Washington Workplace.” 

Washington State also has a law that went into effect in July of 2009 as an amendment to RCW 49.60.215 that allows mothers to breastfeed their babies in places of public accommodation (stores, theatres, restaurants, gyms, libraries, hotels, shopping malls, buses, parks, government buildings, museums, etc.).  In places of public accommodation, the proprietor cannot require a breastfeeding woman to go to a particular place or cover up herself or her baby.  However, the Washington State law does not require employers to allow mothers to bring their babies to work and it would not apply in the workplace unless the workplace met the definition of a “place of public accommodation.”  For example, if a mother who worked at a museum was visiting a museum gallery with her baby on her lunch break, she would be allowed to nurse her baby in the gallery just like any other patron.   

The Washington State Human Rights Commission and the Breastfeeding Coalition of Washington have developed a “Guide to Breastfeeding and Washington State Nondiscrimination Laws” that provides more details on the public accommodation statute.

To date, the U.S. Department of Labor has not adopted regulations addressing the new law on taking breaks to express breast milk, so there is no official guidance on how often breaks can be, how long they can last, or how private the area provided for expressing breast milk must be.  For assistance on applying the new law to a particular situation, it may help to contact an attorney who has experience with the FLSA and an understanding of the issues relating to breastfeeding.

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The information in this post is not legal advice and should not be relied on for any purpose.  Additionally, it may have become outdated after it was posted on May 19, 2010.