['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 Iowa, an employer/former employer or representative may disclose, upon request of a representative of whom the employer/former employer believes to be a prospective employer or upon request of an employee/former employee, employee/former employee information that is work-related, unless he/she is acting unreasonably. An employer/former employer may be liable for unreasonable disclosures. Lack of reasonableness may be shown if the employer/former employer discloses information that:
Violates employee/former employee civil rights,
- Is knowingly provided to someone who has no right to receiving the information,
- Is not relevant,
- Is provided with malice, or
- Is not believed to be true.
Employers that allow agents to blacklist a discharged employee or prevent a discharged or resigned employee from obtaining employment may be liable. However, this does not prevent employers from providing truthful, written statements about the cause of discharge, upon request.
Arrest record inquiries
Both the EEOC and Iowa have no laws or regulations specifically prohibiting arrest record inquiries. However, “Successfully Interviewing Job Applicants” published by the Iowa Civil Rights Commission states that it is illegal to ask an applicant for arrest information.
This is more stringent than 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 Iowa have no laws or regulations specifically prohibiting conviction record inquiries. However, “Successfully Interviewing Job Applicants” published by the Iowa Civil Rights Commission states that if an employer asks an applicant about convictions, the employer must immediately state that convictions will not necessarily disqualify the applicant
This differs from 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
Iowa Department of Justice Iowa Attorney General
Arrest record inquiries
Conviction record inquiries
Regulations
Employer immunity from disclosure claims
Iowa Code 91B.2, Information provided by employers about current or former employees – immunity
Iowa Code 730.1, Punishment
Iowa Code 730.2, Blacklisting employees—treble damages
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.