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Non Profit Report - August 2012

New Federal Guidance on Use of Criminal History in Hiring Decisions
By: Megan C. Spratt

Reprinted with permission. Copyright, ASAE: The Center for Association Leadership, July 2012, Washington, DC.

Summary
The new guidance from the Equal Employment Opportunity Commission, the first update on the issue in more than 20 years, clarifies when and how an employer may consider job candidates' past arrest and conviction records without violating federal discrimination law.

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) passed updated enforcement guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1974. Title VII applies to employers with 15 or more employees, including nonprofit organizations and associations.

The 52-page document clarifies and broadens the circumstances in which an employer's consideration of an applicant's criminal history may violate federal discrimination law, because this practice has a disparate impact on applicants from particular demographic groups.

The guidance, which focuses on employment discrimination based on race and national origin, cites extensive statistics showing that African-Americans and Hispanics are arrested, convicted, and incarcerated at much higher rates than the general population and at rates that are disproportionate to their representation in the general population. Given these large disparities, as well as the persistently weak job market, the EEOC determined that updated guidance on criminal background checks was needed.

Another reason: The use of such background checks by employers has shot up in recent years. The guidance cites a survey finding that 92 percent of responding employers said they subjected all or some of their job applicants to criminal background checks. Given advances in technology and the growth of online databases and records-search companies, this number likely will continue to rise.

The EEOC's longstanding position has been that the use of arrest and conviction records in employment decisions may, under certain circumstances, violate Title VII, leading to disparate-impact liability where the employer's record-screening policy or practice disproportionately affects a protected group and the employer fails to show that the policy or practice is "job related and consistent with business necessity." In other words, once a plaintiff in litigation demonstrates disparate impact, the burden shifts to the employer to show that the challenged practice is job related and consistent with business necessity.

The guidance describes two circumstances in which the EEOC believes the business-necessity standard will usually be met:

1. The criminal background check is validated under one of the three methods (criterion-related validity, content validity, or construct validity) in the Uniform Guidelines on Employee Selection Procedures in the Code of Federal Regulations.
2. The employer develops a "targeted screen" that considers at least three factors -- the nature and gravity of the offense, the time elapsed since the offense occurred, and the nature of the job -- and then provides an opportunity for an individualized assessment to determine whether the policy as applied to a particular excluded person is job related and consistent with business necessity.

Three Factors

The guidance includes commentary on the three minimum factors required for the targeted screen. First, the EEOC indicates that the nature and gravity of the offense should be carefully considered and is instrumental in determining whether a past crime may be relevant to risks in a particular job. Also to be considered is the actual harm caused by the crime.

The EEOC notes that the amount of time that has passed since the crime occurred sheds light on the risk the applicant poses, were he or she to be hired. The guidance provides no specific timeframe, but it makes clear that permanent exclusion from all employment based on past offenses is not consistent with the business-necessity standard.

With respect to the nature of the job, the employer should consider not just the job title but also the duties involved in performing the job, its essential functions, the circumstances under which the job is performed (for example, level of supervision, interaction with colleagues), and the environment in which the job is performed (for example, in a private home or outdoors).

Individualized Assessment

The guidance also describes what is required of employers conducting an individualized assessment. Specifically, the assessment should include:

• notice to the candidate that he or she has been screened out because of a criminal conviction
• an opportunity for the person to show that the exclusion should not be applied due to particular circumstances
• consideration by the employer as to whether additional information provided by the candidate warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity

The candidate's showing may include

• information that he or she was not correctly identified in the criminal record or that the record is otherwise inaccurate
• the facts or circumstances surrounding the offense
• the number of offenses for which the person was convicted
• advanced age at the time of conviction or release from prison
• evidence that the person performed the same type of work after conviction, with the same or a different employer, with no known incidents of criminal conduct
• the length and consistency of employment history before and after the offense
• rehabilitation efforts (for example, education or training)
• employment or character references and any other information regarding fitness for the particular position
• whether the person is bonded under a federal, state, or local bonding program

If the candidate does not respond to the employer's request for additional background information, the employer may make its decision without it. While the individualized assessment is not necessarily required under Title VII, the guidance says, its use can help employers avoid employment-discrimination liability by enabling them to take into account more complete information on individual applicants.

The guidance goes on to offer examples of policies that are inherently not job related and would violate the law, such as policies mandating an automatic, blanket exclusion from all employment opportunities because of any criminal conduct and policies that exclude applicants based on an arrest without conviction. The guidance also recommends that employers not ask about convictions on job applications.

Conflicts With Other Laws

The guidance discusses what is required of an employer if compliance with other federal, state, or local laws conflicts with Title VII. Specifically, it says, compliance with other federal laws and regulations that conflict with Title VII is a defense to a discrimination charge. But if state and local laws conflict with Title VII, they are preempted, and complying with a conflicting state or local law is not a valid defense to a discrimination claim.

This policy raises concerns. Some state laws require criminal background checks for certain professionals, such as teachers and nurses, and impose lifetime prohibitions on employing people with past convictions, even those that are unrelated to their job performance and current conduct. The potential conflicts between Title VII and state laws were not fully examined in the new guidance and will have to be addressed further.

The guidance concludes with a best-practices section, providing examples for employers who take into account criminal record information when making employment decisions. This section encourages employers to take these steps:

• Identify essential job requirements and the circumstances under which the job is performed
• Identify the specific offenses that may indicate unfitness for the job
• Limit criminal record requests to records for which exclusion would be job related
• Maintain the confidentiality of applicants' criminal records
• Train managers and hiring officials on how to implement the screening policy in compliance with Title VII.

Striking a Balance

Although the guidance is not expected to result in major enforcement policy changes, it confirms that under certain circumstances, the use of criminal background checks can have a disparate impact on protected groups, and it provides employers with clarification on the steps they can take to help ensure that their use of background checks does not violate Title VII.

While some employers may complain that the updated guidance will make it more expensive and cumbersome to conduct background checks, most should find that it strikes the right balance between meeting employers' business needs and safety goals and ensuring that members of specific identity groups are not thoughtlessly denied job opportunities that have the potential to transform their lives.

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Association Social Media -- Is Permission Required To Post User Content?
By: Jefferson C. Glassie & Dorothy Deng

© August 2012, Reprinted with permission from Association Media & Publishing.

As user-generated content becomes a growing source of information on the Internet, associations should be mindful of the potential legal problems that relate to using user-generated content. For example, if John Smith posts comments on an association’s website or social media page, can an association use John Smith’s comments in the association’s newsletter without contacting John Smith for permission?

There are a number of legal issues that may relate to the question above. For example, the person who posted the comment (the “poster”) may have a copyright infringement claim against an association if the subsequent publication of his or her comments was unauthorized. The poster may also have a “privacy” claim against an association if the publication harms him or her personally. In addition, the poster may have a “right of publicity” claim against an association if the publication caused damage to the commercial value of the poster’s identity.

To avoid potential liabilities, it is always a good idea that an association seek permission from any poster before publishing his or her comments. That being said, it’s possible that the poster cannot be reached, or does not respond to an association’s requests. Sometimes, an association simply does not have the resources to seek permission from every poster. As this area of law continues to evolve, it doesn’t appear that courts have rendered rulings specifically on point.

Nevertheless, if sufficient notice is provided that by posting on an association’s website or social media page, the poster grants to the association permission to use the content, it should be defensible for the association to use the poster’s content without seeking specific permission. Below is a summary of how an association can minimize the risk of being exposed to legal actions arising out of publishing user generated content.

Comments posted on an association’s website

Many associations permit users to post comments on their websites. It is strongly recommended that an association have website “terms of use”. As the terms of use essentially constitute contract between an association and its users (i.e. posters), the terms should explicitly state that by posting information on the association’s website, the poster grants to the association the right to use and commercialize anything submitted/posted, without further consent, notice, or compensation to the poster. This type of “license” can be implied, and does not require an individual and specific written permission.

Some associations only permit users with user accounts to post comments on their website. Requiring that a user account be established prior to posting may be a good option. First, through the user account, an association can establish a channel for further communications with the content poster. Second, by requiring a user account, an association will have the opportunity to remind the poster that he or she is consenting to the association using the posted comments, possibly through a “click-through” agreement indicating acceptance of the association’s policies.

Comments posted on an association’s social media platform(s)

In addition to an association’s website, many associations participate in third party social media sites by creating “pages” or “groups” managed by the association staff. Similar to the terms of use on an association’s website, the social media site’s terms of use operate as a contract between the specific social media sites and its users. A further examination of the terms for two of the commonly used social media sites, Facebook (http://www.facebook.com/policies/) and LinkedIn (http://www.linkedin.com/static?key=user_agreement), are set forth below:¹

Facebook has a comprehensive list of legal guidelines, policies, and statement of rights and responsibilities that apply to all Facebook users. Most associations with a Facebook presence have “Pages,” which are considered “public pages.” Facebook users are advised that if comments are posted on a Page, those comments may be used by the Page owner off Facebook, and that anyone can see it. Facebook’s terms further alert the users that choosing to make the information public also means that the information can be associated with the poster, and can show up when someone does a search on Facebook or on a public search engine.

LinkedIn’s terms of use also explicitly communicate to the users that content posted on LinkedIn may be seen and used by other users. Therefore, if the user wishes to keep certain information confidential and/or doesn’t want others to use the information, then they are advised not to post it to any LinkedIn Group, the user’s Network Updates, or elsewhere on LinkedIn.

By using these “terms of use,” social media sites make clear to users that content posted on a public page will be public, thereby minimizing the risk of facing copyright infringement, right of publicity or privacy claims. Since an association’s social media platform is generally set to be public, the same principles would apply. However, these sites don’t specifically grant the association rights to the posts.

So, with regard to the issue of obtaining consent from the poster, it is recommended that an association make its own terms of use explicit on such social media platforms that by posting information on the association’s social media page/group, the poster grants to the association the right to use and commercialize anything submitted/posted on the social media page/group, without further consent, notice, or compensation to the poster.

Posting/sharing other materials on an association’s website or social media

Finally, Internet users of either an association’s website or its social media platform may share certain copyrighted materials other than individual comments/remarks. In that case, an association should always seek permission from the original copyright holder prior to using the materials in the association’s publications, whether print or electronic.

In conclusion, an association is not required to seek specific permission from every poster if the association’s terms of use and related policies provide sufficient notice to the user that the association may use any posted content for commercial use, by which the poster grants a license to use such content. Nevertheless, when possible, the most conservative course of action is that an association seek permission from a poster before publishing the content.

^{1. It should be noted that Facebook and LinkedIn frequently update the various policies and statements. As such, an association should review the user terms on a regular basis.}