['Recruiting and hiring']
['Negligent Hiring / Retention']
07/16/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Arizona, a former employer may disclose to prospective employers or their agents information about a person’s education, training, experience, qualifications, and job performance. An employer is immune from civil liability if he/she discloses termination, job performance, conduct, or evaluation information on an employee/former employee to a prospective employer upon request, unless he/she is not acting in good faith. Lack of good faith may be shown if the employer/former employer disclosed the information with the intent to mislead or with actual malice (knowing the information is false or communicating recklessly). Good faith may be shown if the employer/former employer:
- Has less than 100 employees and provides information authorized by law, OR
- Has 100 or more employees and regularly provides requested information authorized by law.
Certain financial institutions are not civilly liable for providing employment references, unless the institution provides false information with knowledge and malice.
Knowingly exchanging, soliciting, or giving out any labor blacklist is a crime.
Arrest record inquiries
Both the EEOC and Arizona have no laws or regulations specifically prohibiting arrest record inquiries. However, the EEOC’s Notice N-915-061 says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Employers in Arizona may not deny employment to someone based on a felony or misdemeanor conviction, unless the offense reasonably relates to employment or occupation functions. A license, permit, or certificate may not be denied to someone based on a felony or misdemeanor conviction, unless the offense reasonably relates to the occupation that the license, permit, or certificate is obtained for.
This is similar to the EEOC’s policy in Notice N-915, which says that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII [of the Civil Rights Act of 1964], in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arizona Department of Commerce
Arrest record inquiries
Arizona Attorney General - Civil Rights Division
Conviction record inquiries
Arizona Attorney General - Civil Rights Division
Regulations
Employer immunity from disclosure claims
Arizona Revised Statute 23-1361, Blacklist; definition; exceptions; privileged communications; immunity
Article 18 Section 9, Blacklists
Arrest record inquiries
None.
Conviction record inquiries
Arizona Revised Statute 13-904, Suspension of civil rights and occupational disabilities
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.