['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
In South Carolina, an employer/former employer may disclose to a prospective employer information about employee/former employee dates of employment, pay, and wage history, unless provided by law or unless the employer/former employer disclosed false information knowingly or recklessly. An employer/former employer may disclose to a prospective employer, upon written request, a written response about employee/former employee written evaluations, official notices of reasons for separation, whether release was voluntary or involuntary, the reason for separation, or job performance, unless provided by law or unless the employer/former employer disclosed false information knowingly or recklessly.
Arrest record inquiries
Neither the EEOC nor South Carolina have 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
Neither the EEOC nor South Carolina have laws or regulations specifically prohibiting conviction record inquiries. However, EEOCs 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
South Carolina Department of Labor, Licensing and Registration
Arrest record inquiries
South Carolina Human Affairs Commission
Conviction record inquiries
South Carolina Human Affairs Commission
Regulations
Employer immunity from disclosure claims
South Carolina Code 41-1-65, Employers granted immunity from liability for disclosure of information
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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