['Recruiting and hiring']
['Negligent Hiring / Retention']
06/10/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Georgia, an employer/former employer may disclose to a prospective employer or former employee upon request factual information about job performance, state law violations, abilities and inabilities related to job duties, unless:
- He/she is not acting in good faith,
- The disclosed information violates a nondisclosure agreement, or
- The disclosed information is confidential according to laws and regulations.
Arrest record inquiries
In Georgia, employers requesting criminal history records from the Georgia Crime Information Center or a local criminal justice agency must provide the person’s fingerprints, signed consent, full name, address, social security number, and birth date. However, the Center or local agencies may disseminate records of in-state felony convictions, pleas, and sentences without fingerprints or consent. The Center and local agencies may not disseminate certain arrest, charge, and sentence records for first offenders who were exonerated and discharged. If the employer makes an adverse employment decision based on the criminal history records, the employer must disclose to the person that a record was obtained, record contents, and the effect of the record.
Both EEOC and Georgia have no laws or regulations specifically prohibiting arrest record inquiries for employers. However, 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
In Georgia, employers requesting criminal history records from the Georgia Crime Information Center or a local criminal justice agency must provide the person’s fingerprints, signed consent, full name, address, social security number, and birth date. However, the Center or local agencies may disseminate records of in-state felony convictions, pleas, and sentences without fingerprints or consent. The Center and local agencies may not disseminate certain arrest, charge, and sentence records for first offenders who were exonerated and discharged. If the employer makes an adverse employment decision based on the criminal history records, the employer must disclose to the person that a record was obtained, record contents, and the effect of the record.
Public or private sector employers may not use a “discharge” record to disqualify a person from employment. A discharge (completion of probation, court release, or release from confinement) of a first time offender completely exonerates the offender, and the offender is not considered to have a criminal conviction, unless otherwise provided by law.
Both EEOC and Georgia have no laws or regulations specifically prohibiting conviction record inquiries for employers. However, 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
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Georgia Commission on Equal Opportunity
Georgia Department of Corrections
Georgia Department of Public Safety
Conviction record inquiries
Georgia Commission on Equal Opportunity
Georgia Department of Corrections
Georgia Department of Public Safety
Regulations
Employer immunity from disclosure claims
Georgia Code 34-1-4
Arrest record inquiries
Georgia Code 35-3-34
Georgia Code 35-3-35
Conviction record inquiries
Georgia Code 35-3-34
Georgia Code 35-3-35
Georgia Code 42-8-62
Georgia Code 42-8-63
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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