The Use of Criminal History Records by Employers

1. National Conference on Privacy, Technology and Criminal Justice InformationMay 31-June 1, 2000 Washington, DC The Use of Criminal History Recordsby Employers Dr. Donald F. Harris President, HR Privacy Solutions and Chair, IHRIM’s Privacy Committee

2. Introduction • Background • Focus: privacy issues raised by the use of criminal history (CH), and criminal history records, by employers in making selection decisions • Approach: apply principles of fair information practice to employment practices in this area • Results: something of a scorecard, with a good number of questions and areas of concern

3. Relevancy • Social consensus: Certain CH is clearly relevant to selection decisions for certain jobs, and should be available to employers • Factors entering into relevancy: • Type of criminal offenses in the CH • Recency of the CH • Criminal offender's age at the time • Patterns of criminal offenses • Job responsibilities • Is certain CH relevant for all jobs? • Violent crimes against individuals? • Will negligent hiring suits create a category of unemployable criminals? • Should an employer be allowed to not hire anyone with a record?

4. Relevancy (cont.) • 28,800 job titles in Dictionary of Occupational Titles, and tens of thousands of criminal offenses, whose definitions vary from state to state • With exception of some clear cut “no brainers”, relevancy is difficult to determine in many, many cases • Lack of guidelines for determining relevancy • Relevancy determinations complicated by gap between CH and CH record • Conviction information without arrest and charge information • Plea bargaining • CH record, even if complete, may not tell “the full story” of what happened • What does a conviction for criminal trespass signify?

5. Relevancy (cont.) • Ambiguity of CH records: • can consume resources for employers, since getting “the full story” takes time and money • disadvantages candidates • places a premium on knowledgeable interpretation • While selection decisions are inherently judgmental, can a better way be devised to handle relevancy determinations? • Infomediary combining professional investigation and job analysis skills? • Help for employers ranging from guidelines to expert computer systems? • A certificate of employability system?

6. Notice • FCRA requires notice to candidates before an investigative consumer report can be performed • 1997 FCRA amendments require both a pre-adverse action disclosure and an adverse action notice • Difficulty of determining practical effect of this requirement • However, no notice is required when employers: • conduct CH checks in-house and deal directly with state or government sources • Notice provided under FCRA typically makes no mention of: • What CH is relevant or constitutes an automatic rejection • What will be done with the CH information after the selection decision • The circumstances under which future CH checks may be carried out by the employer

7. Consent • FCRA requires authorization by candidates before an investigative consumer report can be performed • Authorization documents that notice was provided, and that the candidate agreed that the employer can obtain the report • However, conditions required for true consent (that it be freely-given, unambiguous, informed) do not obtain: • Imbalance in power between employer and employee or applicant is coercive • No room to bargain over the terms offered by the employer • Ambiguity as to what else will be done with the information and future reports • No ability to withdraw authorization at some point in future

8. Fairness in Collection • With regards to CH that is irrelevant to a selection decision, is it a fair information practice: • to collect such derogatory information? • to make the candidate’s failure to provide such derogatory information on an employment application a grounds for automatic or near-automatic rejection? • With regard to any CH, is it a fair information practice: • to collect from the candidate the extensive ancillary information needed when an employer has to rely upon a search of records on a state or county basis (i.e., previous addresses, dates of residence, old employers, etc.)? • To obtain credit history information of the candidate, solely for the purpose of determining which governmental jurisdictions to check?

9. Access • FCRA established the right of candidates to obtain copies of their investigative consumer reports • 1997 FCRA amendments went a significant step further, requiring employers who rely in any way upon an investigative consumer report in rejecting a candidate to give the candidate a copy of the report before rejecting them • Timely access allows candidates to challenge the accuracy or completeness of the report while it still matters • The amendments also require giving candidates rejected on the basis of the report a summary of their rights under the FCRA

10. Accuracy • Mis-matches are not impossible when the basis of identification of an individual is name, date of birth, etc., as opposed to fingerprints • Congress recognized this in the 1997 FCRA amendments by expanding employer responsibilities in the area of candidate access • Completeness of a record is another significant dimension of accuracy • Congress also improved accuracy by eliminating the restriction to seven years of CH, unless the salary exceeds $75,000 • Some states, such as New York, retain a similar restriction under state law, which can lead to inappropriate hires

11. Secondary Uses • 1999 FTC guidelines for employers using consumer reports note that employers may use them in decisions relating to: • new hires • promotions • reassignments • retention • Notice forms may allow the employer to procure new reports at any time during the period of employment, without specifying when and why • E.g., employers may use them when an employee is under investigation because of a complaint or suspected wrong-doing • Limits on uses of new reports, after a selection decision, are unclear

12. Storage and Retention • There are few, if any, restrictions on where employers store CH records, who has access to them, and the requirements for access • Storage options: • Personnel files • Separate files • Sealed envelopes • Off-premises • With the consumer reporting agency • Retention of CH records also rarely discussed • Storage and retention not addressed by FTC 1999 guidelines on consumer reports, or by any readily available “best practices”

13. Security Safeguards • Depending upon the medium used and the storage location, appropriate safeguards for CH records and related documents could require computer security measures, physical security, access controls, audit trails, etc. • Few requirements or guidelines in the area of proper safeguards

14. Accountability and Complaints • Lack of complete transparency about employer practices with regards to CH records, either internally or for external candidates • Does the employer have: • written policies about CH records? • someone designated as accountable for ensuring that legal requirements and company policies relating to CH records are followed? • someone designated to hear complaints about the use or abuse of CH information? • How significant has enforcement of the FCRA been in this area?

15. Conclusions • Significant privacy concerns exist surrounding relevancy, the quality and extent of notice, fairness in collection, secondary uses, and storage and retention • FCRA an extremely important, but also unsuitable, instrument for the protection of privacy in this area • Employers find the current requirements and procedures for checking CH records too complicated, too confusing, too costly and too time-consuming • Lack of adequate guidance and guidelines for employers

16. End

17. Contact Information: Dr. Donald F. Harris President, HR Privacy Solutions 1202 Lexington Avenue, Suite 318 New York, NY 10028 Phone/Fax: (212) 296-1184 E-mail: donaldharris@hrprivacy.com Website: www.hrprivacy.com