1 Using Criminal History Records to Make Personnel Decisions TASPA/TAEE 2014 Winter Conference December 11, 2014 Amber K. King Thompson & Horton LLP 3200 Southwest Freeway, Suite 2000 Houston, Texas
2 TEXAS LAW BASICS Texas Government Code Allows school districts to obtain criminal history records from the Texas DPS regarding employees, volunteers, and others.
3 Texas Education Code & School districts shall obtain criminal history information on certain employees and other individuals School districts shall obtain criminal history information on a volunteer Criminal history information is confidential.
4 Texas Educ. Code Prohibits employment of individuals who have been convicted of (i) a Title V felony under the Penal Code; (ii) an offense that requires registration as a sex offender; or (iii) or an equivalent offense under the laws of another state or federal law AND the victim was under 18 or was enrolled in public school.
5 Title V describes crimes against the person (e.g., homicide, assault, sexual assault, kidnapping) This automatic exclusion does not apply if the offense is older than 30 years and the individual has completed all court requirements
6 EEOC GUIDANCE In April 2012, the EEOC released enforcement guidance The Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964
7 Consolidates and updates previous EEOC guidance documents regarding use of criminal history information. Available at
8 EEOC GUIDANCE IN A NUTSHELL National data related to arrest and convictions rates demonstrates that African-Americans and Hispanics are arrested and convicted at rates that are disproportionate to their representation in the general population. Consequently, excluding job applicants on the basis of their criminal history can cause a disparate impact on minorities and, under certain circumstances, may constitute illegal discrimination under Title VII.
9 REASONS FOR THE UPDATED GUIDANCE Continuing concern about discrimination and stereotyping about criminality Continuing concern about the creation of a permanent underclass of unemployable people
10 Criminal history information is more widely available than ever before
11 WHAT DOES THE GUIDANCE TELL US? An employment policy that prohibits hiring applicants because of their criminal history may have a disparate impact based on race and national origin. Such policies may violate Title VII of the Civil Rights Act of Applicants may not be excluded from employment simply because they have a criminal record (i.e., eliminates per se exclusions). Instead, exclusions must be jobrelated and consistent with business necessity.
12 According to the Guidance, when an applicant has a criminal history, the preferred practice is to engage in an individualized assessment of the individual s suitability for employment.
13 DISPARATE IMPACT VERSUS DISPARATE TREATMENT Disparate treatment The employer treats criminal history information differently for different applicants based on their race or national origin Example An African-American applicant with an assault conviction is excluded, but a white applicant with the same offense is hired
14 Disparate impact The employer s policy is facially neutral but disproportionately screens out a Title VII-protected group. Example school refuses to hire any custodians who have any felony convictions. Such policies are unlawful unless job-related and consistent with business necessity.
15 GUIDANCE COMPLIANCE Job Relatedness is the Key If an employer has a policy related to an applicant s / employee s criminal history, the employer must be able to prove that the policy is job-related for the position in question and consistent with business necessity.
16 Arrests The fact of an arrest does not establish that criminal conduct has occurred. An exclusion based solely on an arrest is not job related and consistent with business necessity. But an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.
17 Recent Arrests/Pending Charges Example: Andrew, an assistant principal, is arrested for inappropriately touching girls. He is placed on leave pending an investigation. The school interviews the girls. The school believes the girls, not Andrew, and he is terminated. Is this proper?
18 Yes. The termination is proper because the decision is made based on descriptions of the underlying conduct, not the fact of the arrest.
19 Query How do we investigate the facts underlying an arrest? What if the arrest occurred out of state? What if the applicant has numerous arrests? Does that say something relevant about the applicant? What if the applicant is arrested on a serious charge but takes a plea bargain on a lesser offense (e.g., a sex offense is reduced to an assault)?
20 How Can We Learn More About an Arrest or Dismissed Charge?
21 Sources of Information The applicant/employee DPS web site County/court specific records Look up cause numbers Retrieve indictments and probable cause affidavits Westlaw/Lexis Interviews with people Newspaper articles regarding criminal cases
22 Convictions Blanket exclusions are not jobrelated nor consistent with business necessity. EEOC cautions that some criminal history records are not up-to-date and may be inaccurate.
23 EEOC is concerned about a criminal record being attributed to the wrong person (e.g., data entry error or identity theft). The employer must show that the hiring policy operates to effectively link specific criminal conduct and its dangers with the risks inherent in the duties of a particular position.
24 Establishing Job Relatedness: Targeted Screens / Individualized Assessments Evaluation of the so-called Green factors (nature of the crime, time elapsed, nature of the job). Opportunity for the applicant to demonstrate why the exclusion should not apply to him/her.
25 Green Factors: Nature of the Crime Felony versus misdemeanor Nature of the harm caused (e.g., harm to a person versus harm to property; harm to a child versus harm to an adult) Legal elements of the offense (Penal Code)
26 Green Factors: Time Elapsed Since the Offense Whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on the particular facts and circumstances of each case.
27 Green Factors: Nature of the Job Actual day-to-day duties and essential functions Level of supervision and oversight Interaction with coworkers and vulnerable individuals (alone with children?) Work environment (office, warehouse, school bus, outdoors, etc.)
28 Recidivism Relevant information may also include studies demonstrating how much the risk of recidivism declines over a specified time. The recidivism rate is a measurement of the rate at which offenders commit new crimes, either by arrest or conviction baselines, after being punished.
29 Likelihood of recidivism is affected by many variables e.g., type of offense, age at sentencing, age at release, level of education, marital status. In Texas, 40 percent of offenders with substance abuse felonies recidivated within three years of being released from custody. Source: Texas Legislative Budget Board, Statewide Criminal Justice Recidivism & Revocation Rates (Jan. 2011)
30 Nationally, offenders with the highest re-arrest rates were robbers, burglars, larcenists, car thieves, those convicted of possessing or selling stolen property, and those convicted for possession or sale of illegal weapons. Source: U.S. Bureau of Justice Statistics (June 2002)
31 In general, the younger the offender at the time of sentencing, the more likely the offender will recidivate. Under age percent Over age percent Source: U.S. Sentencing Commission (2004)
32 Sex offenders are four times more likely to be rearrested for a sex crime as compared to non-sex offenders released from prison. Most sex offenders have been arrested several times for different crimes before going to prison. The more prior arrests, the greater the likelihood of being rearrested for another sex crime after prison Source: U.S. Bureau of Justice Statistics (2003)
33 Recidivism data is not available for all offenses Recidivism studies often focus on criminal conduct occurring one, two, and three years after punishment. What is the rate of recidivism after 10 or 20 or 30 years?
34 Permissible Targeted Exclusion An employer policy or practice of excluding individuals from particular positions for specified criminal conduct within a defined time period, as guided by the Green factors, is a targeted exclusion.
35 When there is a tight nexus between a particular offense and a particular job, Title VII does not necessarily require an individualized assessment However, the Guidance states, the use of individualized assessments can help employers avoid Title VII liability.
36 Be prepared to explain and defend any targeted exclusions. Be prepared to explain and support the length of each exclusionary period.
37 Individualized Assessment EEOC recommends an individualized assessment before making a final employment decision. Give the applicant notice that she/he has been excluded. Give the applicant an opportunity to provide additional information or to explain why she/he should not be excluded.
38 Evaluate whether applying the exclusion to this applicant is job related and consistent with business necessity If the individual does not respond, the employer may make its decision without the individual s additional information
39 Individualized Assessment Factors Facts or circumstances of the offense or conduct Number of offenses Age at the time of conviction Work record since the conviction Length and consistency of employment history before and after the offense
40 Rehabilitation efforts - education and training since the conviction Employment or character references Whether the individual is bonded
41 Statutory Exclusions Does the EEOC Guidance affect compliance with mandatory statutes? According to the Guidance, complying with a federal law criminal history standard is a defense to a discrimination charge. However, according to the Guidance, complying with a state law criminal history standard is not necessarily a defense to a discrimination charge.
42 PRACTICAL ADVICE: Continue to follow the state law requirements that mandate that individuals with certain criminal convictions cannot be hired. If challenged, be prepared to argue and show that state requirements are job related and consistent with business necessity.
43 When to Ask for Criminal History Information EEOC recommends that employers not ask about criminal history on job applications. May school districts ask about criminal history on a job application, or should they wait until later?
44 CONCERNS ABOUT THE GUIDANCE Discourages per se policies that automatically disqualify individuals with certain convictions. Conflicts with state laws that require automatic disqualification of certain offenses.
45 Disallows reliance on arrests without individualized assessment of the underlying facts of the arrest; however, information regarding the underlying arrest is seldom available. Improperly expands Title VII by creating a new protected class of criminal offenders.
46 RESPONSE TO THE GUIDANCE July 2013 Eight state Attorneys General submitted a joint letter to the EEOC Commissioners asking for modification of the Guidance. November 2013 Texas Attorney General Abbott sued the EEOC. August 2014 Court dismissed AG s lawsuit against EEOC on jurisdictional grounds. August 2013 State filed an appeal with the Fifth Circuit.
47 BOTTOM LINE The Guidance does not prohibit asking for criminal history on a job application. However, the application should make clear that disclosure of criminal history information will not automatically preclude employment. The application should invite the applicant to provide explanatory information.
48 Do not share applicants criminal history information with the hiring authority. Provide training to hiring managers so that they will understand the restrictions on use of criminal history information.
49 EMPLOYMENT DECISIONS As a result of the Guidance, all must be much more regimented in evaluating criminal history information. Written standards must be position-specific and offensespecific.
50 In determining job-relatedness, focus on duties and work environment, not job titles. Examples of job-specific categories: Positions with cash handling or financial responsibilities Positions that require driving a motor vehicle Positions that require working with minors
51 Positions with security responsibilities (campus peace officer, security guard) Some categories may overlap (for example, a peace officer holds a security-sensitive position and drives a motor vehicle), in which case the more rigorous standard would apply
52 Identify the criminal offenses that are related to each job or job category. Examples: A DWI conviction would be related to a job that requires driving A theft conviction would be related to a job that requires the handling of money
53 Determine whether certain offenses will result in disqualification for certain positions ( tight nexus required). Determine the length of the disqualification period. Consider available research and data on recidivism rates for particular offenses.
54 Develop guidelines and forms for the individual assessment process. Preserve policy research and any written justification for particular standards.
55 TRAINING It is essential to provide training to all personnel who will be handling criminal history information Do not share criminal history information with the hiring authority/campus
56 RECORD KEEPING Store records separately from regular personnel file. Comply with EEOC records retention requirements. See 29 CFR , , requiring retention of hiring records for at least two years.
57 FINAL THOUGHTS Review and update policies (DBAA) and administrative regulations. Reconsider broad exclusions (e.g. and criminal offense in last 5 years). Consider what to do with pending charges. Properly document applicants opportunity to provide explanatory information.
58 Have a consistent rule regarding how you treat applicants who misrepresent information about their criminal history. Appropriately communicate to an applicant who is disqualified due to his/her criminal background. Periodically review whether selection practices are having a disparate impact on a particular group This will require maintaining data
59 Thank you! Amber K. King Thompson & Horton LLP 3200 Southwest Freeway, Suite 2000 Houston, Texas (713) December 2014 Thompson & Horton LLP
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