['Recruiting and hiring']
['Negligent Hiring / Retention']
07/16/2024
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
SEARCH
Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Arkansas, an employer/former employer may disclose the specific information about an employee/former employee to a prospective employer if the employer/former employer receives written consent from the employee/former employee, unless he/she is not acting in good faith. Disclosures may include the information listed in Arkansas Code 11-3-204(a)(1). An employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer disclosed false information recklessly, knowingly, or with malicious intent.
Blacklisting any person in order to prevent that person from securing employment or cause the discharge of any person employed by any company or individual is a crime.
Arrest record inquiries
Both the EEOC and Arkansas have no laws or regulations specifically prohibiting arrest record inquiries for public or private employers. However, state boards, commissions, departments, or agencies may not use for registration, license, or certification application purposes any arrest records that are not followed by a felony conviction.
In addition, 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
Both the EEOC and Arkansas have no laws or regulations specifically prohibiting conviction record inquiries for private employers. However, the EEOC’s Notice N-915 says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII [of the Civil Rights Act of 1964,, as amended].” According to Notice N-915, 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.
Arkansas state boards, commissions, departments, or agencies may consider convictions which are still not annulled, expunged, or pardoned, but the convictions may not automatically bar a person from registration, licensing, or certification. State boards, commissions, departments, or agencies may not use misdemeanor convictions for registration, license, or certification application purposes, unless they are sex or violence misdemeanor offenses. If state boards, commissions, departments, or agencies decide, based on a felony conviction, to prohibit an applicant from receiving a registration, license, or certification for a trade, profession, or occupation, then they must provide the applicant with written reasons for their decision.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Conviction record inquiries
Regulations
Employer immunity from disclosure claims
Arkansas Code 11-3-202, False statements or blacklists to prevent employment prohibited
Arkansas Code 11-3-204, Providing references to prospective employers
Arrest record inquiries
Arkansas Code 17-1-103, Registration, certification, and licensing for criminal offenders
Conviction record inquiries
Arkansas Code 17-1-103, Registration, certification, and licensing for criminal offenders
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)."
READ MORESHOW LESS
['Recruiting and hiring']
['Negligent Hiring / Retention']
Load More
J. J. Keller is the trusted source for DOT / Transportation, OSHA / Workplace Safety, Human Resources, Construction Safety and Hazmat / Hazardous Materials regulation compliance products and services. J. J. Keller helps you increase safety awareness, reduce risk, follow best practices, improve safety training, and stay current with changing regulations.
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.