['Recruiting and hiring']
['Negligent Hiring / Retention']
06/13/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
Before 60 days after June 15, 2005:
- Both the federal and state requirements do not cover employer immunity from disclosure claims.
Effective 60 days after June 15, 2005:
- In Pennsylvania, 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. However, an employer/former employer may be liable for disclosures and the consequences of those disclosures that are shown to be knowingly false (or should have been knowingly false), knowingly misleading, reckless, or prohibited by contract, law, or right of the employee/former employee. Employer/Former employer includes private, public, and nonprofit entities and their representatives. The term job performance does not appear to be defined and may be interpreted to have a narrow meaning; therefore, employers must use caution when disclosing information, so that it falls under the meaning of job performance.
- Unlike Pennsylvania, federal requirements do not cover employer immunity from disclosure claims.
Arrest record inquiries
Both the EEOC and Pennsylvania have no laws or regulations specifically prohibiting arrest record inquiries. However, “Pre-employment Inquiries — What may I ask? What must I answer?” published by the Pennsylvania Human Relations Commission says that an employer may not use arrest records to disqualify an applicant, unless it can show a business necessity.
Similarly, 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 Pennsylvania, an employer may consider an applicant’s felony/misdemeanor convictions only if they relate to suitability for the job. If the employer decides, based on criminal records, not to hire the applicant, the employer must send written notification to the applicant. According to “Pre-employment Inquiries: What may I ask? What must I answer?” published by the Pennsylvania Human Relations Commission, employers may not ask about convictions, unless they can show that such an inquiry is related to suitability to job duties and they immediately state to the applicant that a conviction is not an automatic bar to employment. An employer may only reject an applicant with regard to convictions when three factors (number, nature, and recentness) make the applicant unsuitable for the job duties.
This is very 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
None; however, Pennsylvania Senator Patricia Vance introduced Senate Bill 69, which was signed into law on June 15, 2005, and added Pennsylvania Statute 42 Section 8340.1.
Arrest record inquiries
Pennsylvania Human Relations Commission
Conviction record inquiries
Pennsylvania Human Relations Commission
Regulations
Employer immunity from disclosure claims
Pennsylvania Statute Title 42, Section 8340.1, Employer immunity from liability for disclosure of information regarding former or current employees
Arrest record inquiries
None.
Conviction record inquiries
Pennsylvania Statute Title 18, Section 9125, Use of records for employment
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.