['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 Missouri, an employer/former employer may disclose in writing to an entity, which he/she believes to be a prospective employer, upon written request, information about employee/former employee nature and character of service, duration of service, and the cause of discharge or resignation. However, an employer/former employer may be liable for knowingly disclosing false information or disclosing information recklessly.
The employer/former employer must send a copy of the disclosure letter to the employee/former employee using the last known address. This letter may be requested by the employee/former employee up to a year after the date of the letter.
Upon request within a year of voluntary or involuntary discharge of a former employee who worked at least 90 days for the employer, a former employer must send the former employee a letter containing the nature and character of the job, duration of employment, and the true cause of discharge, within 45 days of receiving such a request. However, this only applies to employers with seven or more employees.
Arrest record inquiries
Both the EEOC and Missouri have no laws or regulations specifically prohibiting arrest record inquiries. However, “Pre-Employment Inquiries” published by the Commission on Human Rights says that employers may not ask about arrest records, unless it is related to the job. Also, employers may not ask about arrest types or how many arrests.
This is similar to 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 Missouri have no laws or regulations specifically prohibiting conviction record inquiries. However, “Pre-Employment Inquiries” published by the Commission on Human Rights says that employers may not ask about convictions, unless it is substantially related to the job and the ability to perform that job.
This is somewhat similar to the 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
Missouri Department of Labor and Industrial Relations
Arrest record inquiries
Missouri Commission on Human Rights
Conviction record inquiries
Missouri Commission on Human Rights
Regulations
Employer immunity from disclosure claims
Missouri Revised Statute 290.140, Letter of dismissal, when—failure to issue, damages—punitive damages, limitations
Missouri Revised Statute 290.152, Employer response to request for information about current or former employee, contents, requirements, civil immunity, when.
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.