1 The Use of Criminal History Records by Employers Dr. Donald F. Harris President, HR Privacy Solutions and Chair, IHRIM’s Privacy Committee National Conference on Privacy, Technology and Criminal Justice Information May 31-June 1, 2000 Washington, DC

2 Introduction  Background  Focus: privacy issues raised by the use of criminal history (CH), and criminal history records, by employers in making selection decisions  Approach: apply principles of fair information practice to employment practices in this area  Results: something of a scorecard, with a good number of questions and areas of concern

3 Relevancy  Social consensus: Certain CH is clearly relevant to selection decisions for certain jobs, and should be available to employers  Factors entering into relevancy: Type of criminal offenses in the CH Recency of the CH Criminal offender's age at the time Patterns of criminal offenses Job responsibilities  Is certain CH relevant for all jobs? Violent crimes against individuals? Will negligent hiring suits create a category of unemployable criminals?  Should an employer be allowed to not hire anyone with a record?

4 Relevancy (cont.)  28,800 job titles in Dictionary of Occupational Titles, and tens of thousands of criminal offenses, whose definitions vary from state to state  With exception of some clear cut “no brainers”, relevancy is difficult to determine in many, many cases  Lack of guidelines for determining relevancy  Relevancy determinations complicated by gap between CH and CH record Conviction information without arrest and charge information Plea bargaining CH record, even if complete, may not tell “the full story” of what happened What does a conviction for criminal trespass signify?

5 Relevancy (cont.)  Ambiguity of CH records: can consume resources for employers, since getting “the full story” takes time and money disadvantages candidates places a premium on knowledgeable interpretation  While selection decisions are inherently judgmental, can a better way be devised to handle relevancy determinations? Infomediary combining professional investigation and job analysis skills? Help for employers ranging from guidelines to expert computer systems? A certificate of employability system?

6 Notice  FCRA requires notice to candidates before an investigative consumer report can be performed  1997 FCRA amendments require both a pre-adverse action disclosure and an adverse action notice Difficulty of determining practical effect of this requirement  However, no notice is required when employers: conduct CH checks in-house and deal directly with state or government sources  Notice provided under FCRA typically makes no mention of: What CH is relevant or constitutes an automatic rejection What will be done with the CH information after the selection decision The circumstances under which future CH checks may be carried out by the employer

7 Consent  FCRA requires authorization by candidates before an investigative consumer report can be performed  Authorization documents that notice was provided, and that the candidate agreed that the employer can obtain the report  However, conditions required for true consent (that it be freely-given, unambiguous, informed) do not obtain: Imbalance in power between employer and employee or applicant is coercive No room to bargain over the terms offered by the employer Ambiguity as to what else will be done with the information and future reports No ability to withdraw authorization at some point in future

8 Fairness in Collection  With regards to CH that is irrelevant to a selection decision, is it a fair information practice: to collect such derogatory information? to make the candidate’s failure to provide such derogatory information on an employment application a grounds for automatic or near-automatic rejection?  With regard to any CH, is it a fair information practice: to collect from the candidate the extensive ancillary information needed when an employer has to rely upon a search of records on a state or county basis (i.e., previous addresses, dates of residence, old employers, etc.)? To obtain credit history information of the candidate, solely for the purpose of determining which governmental jurisdictions to check?

9 Access  FCRA established the right of candidates to obtain copies of their investigative consumer reports  1997 FCRA amendments went a significant step further, requiring employers who rely in any way upon an investigative consumer report in rejecting a candidate to give the candidate a copy of the report before rejecting them  Timely access allows candidates to challenge the accuracy or completeness of the report while it still matters  The amendments also require giving candidates rejected on the basis of the report a summary of their rights under the FCRA

10 Accuracy  Mis-matches are not impossible when the basis of identification of an individual is name, date of birth, etc., as opposed to fingerprints  Congress recognized this in the 1997 FCRA amendments by expanding employer responsibilities in the area of candidate access  Completeness of a record is another significant dimension of accuracy  Congress also improved accuracy by eliminating the restriction to seven years of CH, unless the salary exceeds $75,000  Some states, such as New York, retain a similar restriction under state law, which can lead to inappropriate hires

11 Secondary Uses  1999 FTC guidelines for employers using consumer reports note that employers may use them in decisions relating to: new hires promotions reassignments retention  Notice forms may allow the employer to procure new reports at any time during the period of employment, without specifying when and why E.g., employers may use them when an employee is under investigation because of a complaint or suspected wrong-doing  Limits on uses of new reports, after a selection decision, are unclear

12 Storage and Retention  There are few, if any, restrictions on where employers store CH records, who has access to them, and the requirements for access  Storage options: Personnel files Separate files Sealed envelopes Off-premises With the consumer reporting agency  Retention of CH records also rarely discussed  Storage and retention not addressed by FTC 1999 guidelines on consumer reports, or by any readily available “best practices”

13 Security Safeguards  Depending upon the medium used and the storage location, appropriate safeguards for CH records and related documents could require computer security measures, physical security, access controls, audit trails, etc.  Few requirements or guidelines in the area of proper safeguards

14 Accountability and Complaints  Lack of complete transparency about employer practices with regards to CH records, either internally or for external candidates  Does the employer have: written policies about CH records? someone designated as accountable for ensuring that legal requirements and company policies relating to CH records are followed? someone designated to hear complaints about the use or abuse of CH information?  How significant has enforcement of the FCRA been in this area?

15 Conclusions  Significant privacy concerns exist surrounding relevancy, the quality and extent of notice, fairness in collection, secondary uses, and storage and retention  FCRA an extremely important, but also unsuitable, instrument for the protection of privacy in this area  Employers find the current requirements and procedures for checking CH records too complicated, too confusing, too costly and too time-consuming  Lack of adequate guidance and guidelines for employers

16 End

17 Contact Information: Dr. Donald F. Harris President, HR Privacy Solutions 1202 Lexington Avenue, Suite 318 New York, NY Phone/Fax: (212) Website: