-
[CRIMINAL RECORDS]
CRIMINAL RECORDS

Criminal records, social security, work eligibility


Q We recently found out that a top candidate for a position in our company was convicted of domestic violence more than 10 years ago. Can we consider this information when deciding whether to hire this candidate?

A It's understandable that an employer would have concerns about a job candidate's suitability for a position when it's discovered that the candidate has been arrested or convicted of a crime. Nonetheless, employers must adhere to enforcement guidance from the Equal Employment Opportunity Commission (EEOC).

[ILLUSTRATION OMITTED]

The EEOC advises that an employer who denies employment on the basis of a candidate's conviction should be able to demonstrate a sound business justification or necessity for doing so. The EEOC instructs employers to consider the type and severity of the offense, the amount of time that has elapsed since the offense occurred and how the offense would relate to the job.

To determine the legitimacy of a declared business necessity for declining employment, an employer must measure the offense against possible damage to the company's reputation, anticipated contact with clients or the public for which the employer could be held liable, and the potential for harm to current employees.

It is much riskier to decline employment solely on the basis of an arrest record. EEOC statistics show that minorities are arrested at disproportionately higher rates, so considering arrests may result in disparate impact in an employer's hiring process. The EEOC, in compliance with Title VII of the Civil Rights Act of 1964, prohibits employers from using arrest records in making employment decisions. (For more details on Title VII and the EEOC's enforcement guidance on considering arrest records, visit the online version of HR Solutions at www.shrm.org/hrnews.)

Employers should note also that the extent to which they can consider criminal records for employment decisions varies under state laws.

Moreover, many states require certain types of employers to screen job applicants with criminal records for specific convictions. Such screening applies especially to applicants for jobs that involve contact with vulnerable individuals, such as children or the elderly. And in many states, criminal-record screening is required for applicants for certain types of licenses.

--GRP

Q Is it legal to request a Social Security number on a job application?

A Yes, it is permissible to require Social Security numbers (SSNs) on job applications, but be aware that some states are considering or have enacted measures to limit or even prohibit the use of SSNs on some documents and in some communication channels, including mail and the Internet.

The SSN is convenient and easy to use since each person's number is unique and most employees know their own number. The SSN is used on personnel and medical records, in health insurance accounts, and on many other important records. For example, personnel files can include job applications containing personal and confidential information, such as the person's address, SSN, work history and education. That information makes this document alone a prime target for identification thieves.

With identification theft on the rise, protection of SSNs has become a hot topic in state legislatures. Some states have placed restrictions on business uses of SSNs and the sending of Social Security numbers over the Internet. California's Online Privacy Protection Act of 2003 took effect last July 1, a similar law takes effect in Missouri next January, and Virginia has amended a law to further restrict the display of Social Security numbers on employee identification cards.

In California and Arizona, for example, private employers (state and local agencies are excluded) cannot post a person's SSN in public, print it on any card required for access to products or services, require its transmission on an unsecured connection over the Internet, use it to access an Internet site unless accompanied by an authentication device (a unique password or personal identification number), or print it on any materials that are mailed to the person, unless required by state or federal law.

In some states, employers can be exempt from restrictions if, for example, they inform employees annually of their right to stop employers from using their SSN, or if employers notify employees that they can prevent the use of their SSNs in certain circumstances by making their request in writing. And employers may be prohibited from charging employees for the administrative costs of implementing such requests.

Despite such restrictions, employers may still use SSNs in the collection, use or retention of information for verification and administrative reasons. Applications sent by mail may include a request for SSNs.

[ILLUSTRATION OMITTED]

--VN

Q Can we terminate a new hire who has not provided documentation of eligibility for U.S. employment?

A United States Citizenship and Immigration Services (USCIS) requires that all employees hired on or after Nov. 6, 1986, complete an I-9 form and provide documentation that verifies their identity and eligibility to work in the United States. The documentation must be provided within three business days from the date employment begins.

An employee unable to provide documentation may present a receipt verifying that he has applied for the document, and it must be noted on the I-9 form that the document provided was a receipt. The original document must be provided within 90 days.

At that time, the employer should draw a line through the information about the receipt and fill in the information about the actual document.

According to the USCIS's Handbook for Employers, employees who fail to provide the proper documentation within three days of being hired or 90 days of providing a receipt can be terminated.

In addition, on or before the expiration date of a temporary-authorization-to-work card, the employer must require the employee to present the employer with new documentation. The employee must show he is still eligible to work in the United States. It is best to remind employees six months prior to a card's expiration date that they will need to renew their temporary authorization.

Employees who are unable to show that their temporary work authorization has been renewed are no longer authorized to work in the United States. Thus, they should be terminated.

Public OK With Releasing Some Criminal Records Publicly 05/31/00 - Government Activity