['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 Indiana, an employer/former employer may disclose to a prospective employer employee/former employee information, unless he/she discloses false information at the time of the disclosure. An employer may be liable for false disclosure information. It is a crime for a former employer may not prevent a former employee from obtaining employment, and the former employer may be liable for such activities. However, a former employer may disclose to a prospective employer a written statement containing the reasons for discharging a former employee.
Prospective employers must provide copies of employer/former employer written communications that affect employability, upon written request of the prospective employee if received within 30 days of application.
Former employers must provide former employees, upon written request, a letter stating the former employee’s nature and character of duties, duration of employment, and the true cause, if any, for the employee’s leaving or discharge.
Arrest record inquiries
Both the EEOC and Indiana 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
Both the EEOC and Indiana have no laws or regulations specifically prohibiting conviction record inquiries. 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 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
Indiana Civil Rights Commission
Conviction record inquiries
Indiana Civil Rights Commission
Regulations
Employer immunity from disclosure claims
Indiana Code 22-5-3-1, Disclosure of information after employee’s discharge
Indiana Code 22-6-3-1, Exemptions
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.