Criminal Records Check in Employment for Small Business

Seal of the United States Equal Employment Opp...

In April 2012, the Equal Employment Opportunity Commission (EEOC) expanded its guidance, “Enforcement Guidance on the Consideration of Arrest & Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” and addressed in detail an employer’s use of criminal records checks information in employment decisions. While the EEOC always has cautioned employers not to use such records to preclude employment across the board, the expanded guidance provides insight on how to use criminal records check information in employment decisions without running afoul of Title VII.

The guidance, which applies to employers with 15 or more employees, warns employers that the use of criminal records checks information in hiring decisions may lead to discrimination claims. These claims will be based, most likely, in racial or national origin discrimination because statistics show that African Americans and Hispanics are arrested and convicted at a rate disproportionate to their numbers in society. Consequently, if an employer uses criminal records check information as a screening tool, eliminating all applicants with any criminal record, the employer will run afoul, more likely than not, of the guidance.

The guidance does not preclude the use of criminal records checks information in employment decisions. Rather, it requires that the employer use such information in a neutral manner so as not to screen out automatically applicants who are in “protected classes,” particularly race and national origin.

The guidance suggests a three pronged test as well as “best practices” to guide the employer in its use of criminal records checks. Under the test, the employer should ask three questions: what is the nature and gravity of the criminal offense; how long has it been since the applicant committed the offense; and, what is the relationship between the offense committed and the job’s requirements. In addition, the employer should determine if there are mitigating circumstances regarding the criminal records check information by giving the applicant an opportunity to explain and demonstrate why the information should not disqualify the applicant from the job. If there is a relationship between the position and the criminal record and a substantial amount of time has not passed between the offense and the application, then it may be appropriate to deny the applicant the position.

The guidance’s “best practices” recommend that employers eliminate policies that preclude employment based on any criminal record without context, train hiring managers about Title VII and how to apply it legally to a criminal records check policy, and develop a policy that matches the job requirements and the offenses that potentially disqualify an applicant from a job. The “best practices”also recommend that employers set a time limit for consideration of a criminal history and allow applicants to respond to it. Finally, the “best practices” recommend a written policy with its justifications, preservation of the research used to develop the policy, and appropriate confidentiality rules.

While using the three pronged test and the “best practices” in developing a criminal records check policy does not guarantee a claim free future, it enables the employer to provide a reasoned defense to discrimination claims filed against it. As always, before instituting any policy which has legal implications, it is advisable to seek the advice of legal counsel.

Law Office of Paula M. Potoczak
218 North Lee Street, Third Floor
Alexandria, Virginia   22314
(703) 519-3733 (Telephone)

Non-Competition Agreements for Small Business: Not Too Broad or Too Narrow, But Just Right

The Supreme Court of Virginia Building, adjace...

Non-competition agreements, or non-solicitation agreements, are generally clauses within employment agreements which limit employees’ ability to enter into employment or to start a business which competes with a former employer.  Under Virginia law, non-competes (sometimes called or written plainly “noncompetes”), though viewed as a restraint of trade, are enforceable if the three prongs of the non-compete–time, geography and function–are properly limited.  The non-compete terms should be broad enough to protect the employer’s business interests, but not so broad as to prevent the employee from earning a living and should not violate public policy.

 

Many times the focus on non-compete agreement terms fall on the time and geography prong.  In November, the Virginia Supreme Court squarely refocused the discussion on the function prong of the non-compete.  In Home Paramount Pest Control v. Shaffer, the Court reviewed a non-compete agreement that it had approved 22 years ago in Paramount Termite Control v. Rector.  This time the Court declared that the function provision, which the company had not changed in the ensuing time, as overly broad and the entire agreement as unenforceable.

 

The Court held that the language which stated that the former employee could not engage “directly or indirectly. . . in any manner whatsoever in the carrying on or conducting the business of exterminating, pest control, termite control and/or fumigation services as an owner, agent, servant, representative, or employee, and/or as a member of a partnership and/or as an officer, director or stockholder or any corporation or in any manner whatsoever . . .” was not reasonable because the clause effectively prohibited the employee from holding any type of job in the industry.  The reasonableness of the time and geography prongs were insufficient to save the agreement.  Under the Home Paramount, if a business wants to preclude an employee from performing any work for a competitor, then it must be ready, willing and able to prove a “legitimate business interest” to do so. That’s not necessarily an easy task.

 

So, to ease the process for small businesses, now is the time to review any non-compete clauses used in your business.  Be wary of non-competition agreement forms or templates.  What terms are permissible in a non-compete clause in Virginia may not work at all in California – and vice versa. Terms permissible 20 years ago or even 6 months ago  in Virginia are no longer workable.  Court decisions over time can and do change the law.  The laws of individual states evolve over time and the laws of each state differ.

 

All three prongs of the non-compete must be appropriately limited, reasonable and related to the position in question.  The function prong cannot be so broad that it effectively precludes the employee from performing any job in the industry from CEO to janitor or even from owning stock passively in a multinational, publicly held corporation.

 

 

Law Office of Paula Potoczak

218 N. Lee St., 3rd Floor

Alexandria, VA 22314

703-519-3733