['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 Kentucky, an employer/former employer may disclose to a prospective employer (upon request of the employee/former employee or prospective employer) information of employee/former employee job performance, conduct, or evaluation. However, an employer/former employer may be liable for disclosures that are shown to be knowingly false, knowingly misleading, reckless, or unlawfully discriminating.
Arrest record inquiries
Both the EOC and Kentucky 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
In Kentucky, a public employer may not disqualify a person for employment based on a conviction, unless the conviction is a felony, high misdemeanor, or misdemeanors with a jail sentence, or unless the conviction relates to the job. To determine relatedness to the job, the employer must consider:
- Nature and gravity of offense(s),
- How the crime relates to the position, and
- How the crime relates to the ability, capacity, and fitness required of the applicant in performing job duties.
There are no prohibitions for public employers to hire successfully rehabilitated convicts.
Employers with positions that supervise or discipline a child or children may request conviction records for offenses committed within five years of an application for these positions. Requests may go to the Justice Cabinet or the Administrative Office of the Courts and a copy of the record will be sent to the applicant. Fingerprinting of these applicants is not required.
Both the EEOC and Kentucky have no laws or regulations specifically prohibiting conviction record inquiries for private 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
Kentucky Legislative Research Commission
Arrest record inquiries
Kentucky Commission on Human Rights
Conviction record inquiries
Kentucky Commission on Human Rights
Regulations
Employer immunity from disclosure claims
Kentucky Revised Statute 411.225, Employer immunity from civil liability for disclosure of employee information – Exceptions – Effect of provision
www.lrc.ky.gov/Statutes/statute.aspx?id=17792
Arrest record inquiries
None.
Conviction record inquiries
Kentucky Revised Statute 335B.010, Definitions
www.lrc.ky.gov/Statutes/statute.aspx?id=31982
Kentucky Revised Statute 335B.020, Disqualification from public or occupational license of ex criminal offenders prohibited – exceptions
www.lrc.ky.gov/Statutes/statute.aspx?id=31983
Kentucky Revised Statute 17.160, Furnishing potential employer with person’s record of convictions, guilty pleas, and Alford pleas involving specified crimes
www.lrc.ky.gov/Statutes/statute.aspx?id=1218
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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