['Recruiting and hiring']
['Negligent Hiring / Retention']
06/14/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
Before 90 days after March 31, 2006:
- Both the federal and state requirements do not cover employer immunity from disclosure claims, for most industries.
Effective 90 days after March 31, 2006:
- In West Virginia, an employer/former employer may disclose to a prospective employer adverse job-related information on an employee/former employee if the disclosure is in writing and a copy is provided to the employee/former employee, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer discloses information that is knowingly false, knowingly misleading, reckless, or maliciously intended or violates the law or a nondisclosure agreement. Employers/Former employers must send corrected information to all who received the original information and a copy to the employee/former employee, if the original information was false or misleading and the employee/former employee requests it to be done. Job-related information is defined at West Virginia Code 55-7-18a(c).
Currently, a financial institution officer may provide to another financial institution an employee’s/former employee’s participation in a financial institution statute/regulation violation that has already been reported to authorities.
Arrest record inquiries
Neithe the EEOC nor West Virginia have laws or regulations specifically prohibiting arrest record inquiries. However, the “Pre-Employment Inquiries Technical Assistance Guide” published by the Bureau of Employment Programs says that employers may not ask about arrest records.
This is more stringent than 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 West Virginia have laws or regulations specifically prohibiting conviction record inquiries. However, the “Pre-Employment Inquiries Technical Assistance Guide” published by the Bureau of Employment Programs says that employers may not ask about conviction records, unless it relates to the job, the conviction has not been expunged or sealed, and the employer immediately states that conviction records do not automatically bar employment. The Guide adds that employers should consider when the conviction occurred, the nature of the offense, and the rehabilitation of the applicant.
However, the 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 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
West Virginia Division of Banking
Arrest record inquiries
West Virginia Bureau of Employment Programs
West Virginia Human Rights Commission
Conviction record inquiries
West Virginia Bureau of Employment Programs
West Virginia Human Rights Commission
Regulations
Employer immunity from disclosure claims
West Virginia Code §31A-4-44, Employment information
West Virginia Code §55-7-18a, Employer immunity from liability; disclosure of information regarding former employees [See House Bill 4296]
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.