['Recruiting and hiring']
['Negligent Hiring / Retention']
06/11/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Idaho, an employer/former employer may disclose to a prospective employer, at the request of the prospective employer or the employee/former employee, information about employee/former employee job performance, conduct, or evaluation, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer disclosed information:
- With malice (knowing the information was false or giving information recklessly), or
- With intent to mislead.
Maintaining a blacklist or notifying an employer of a blacklisted employee/former employee in order to prevent that person from obtaining employment is a crime.
Arrest record inquiries
Both the EEOC and Idaho have no laws or regulations specifically prohibiting arrest record inquiries. However, the “Pre-Employment Inquiries” document published by the Idaho Human Rights Commission states that it is “unwise or unacceptable” to ask if someone has been arrested or charged with a crime. This differs from the EEOC’s Notice N-915-061, which 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 Idaho have no laws or regulations specifically prohibiting conviction record inquiries. However, the “Pre-Employment Inquiries” document published by the Idaho Human Rights Commission states that an employer may ask if an applicant has ever been convicted on an application or during an interview, but only if the employer immediately states:
- That the conviction does not mean the employer will automatically deny him/her employment, and
- The employer will consider the crime’s seriousness and the conviction date.
This is somewhat similar to EEOC’s Notice N-915, which 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
Idaho Commerce and Labor Department
Arrest record inquiries
Idaho Commission on Human Rights
Conviction record inquiries
Idaho Commission on Human Rights
Regulations
Employer immunity from disclosure claims
Idaho Statute 44-201, Employer duties
Arrest record inquiries
None.
Conviction record inquiries
None.
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.