Written By: Jill L. Rosenberg, Joe Liburt and Jessica R. L. James Employers across the country should dust off their background check policies and forms and be mindful of recent developments related to the federal Fair Credit Reporting Act (FCRA). FCRA mandates specific, technical steps for employers using consumer reports to make employment decisions, including hiring, […]
South Carolina’s New Expungement Law Could Increase Applicant Pool
In an effort to increase the state’s potential workforce, the South Carolina General Assembly passed legislation last week that will expand the state’s current expungement law and allow individuals to more easily remove criminal convictions from their records. The hope is that prospective employees with low-level crimes on their records will no longer be discouraged from applying for jobs; this, then, should make it easier for employers to recruit qualified workers. What do South Carolina employers need to know about this new law? While South Carolina does not have a ban-the-box law, the state legislature has instead taken it one step further: the new law will make it easier for persons to erase certain convictions from their records. Current law permits persons to expunge a first-offense, low-level crime carrying a sentence of 30 days or less from their record following a period of good behavior. The new law removes the “first-offense” requirement and also allows persons to erase multiple convictions arising out of the same sentencing hearing if they are “closely connected.” Significantly, the law also allows offenders to expunge first-offense simple drug possession and possession of drugs with intent to distribute crimes. The law applies retroactively to those offenses committed prior to the law’s passage.
California Will Dramatically Change Management of State Sex Offender Registry System in 2021
In October 2017, California Governor Jerry Brown signed Senate Bill 384 (SB 384) – also known as the “Sex Offender Registration Act” – which will dramatically change how the state manages the California Sex Offender Registry when the law eventually takes effect on January 1, 2021. Existing California law requires persons convicted of specified sex offenses to register with local law enforcement agencies while residing in the state or while attending school or working in the state. Willful failure to register is a misdemeanor or a felony, depending on the underlying offense. Starting on January 1, 2021, SB 384 will instead create of a new three-tiered system of sex offender registration, and California will organize registered offenders into three tiers based on their offense and risk of re-offending instead of treating all registerable sex offenses the same.
From Discrimination to Invasions of Privacy: The Dangers of Social Media Background Checks
State laws do not bar employers from using social media for any form of background check, but they do make it more difficult. Left to their own devices, employers must use social network search functions to find their candidates on LinkedIn (usually pretty easy), Facebook (more difficult), and Twitter (next to impossible).
This added challenge brings to light issues with the consistency and verifiability of social media background checks. Employers can rarely be sure if they’ve found the correct social media profile for a candidate. Since many candidates are difficult to find on social media — whether because they don’t have active accounts or have activated robust privacy settings — there is no consistency to the social media background check process.
Someone who is very active on Facebook could have a disadvantage compared to a candidate who doesn’t have a profile. With any background check, consistency in procedures from one applicant to the next is paramount. That consistency cannot be achieved with social media background checks.
Employers and job seekers alike should be aware of the rocky implications of social media background checks. More traditional background checks — from criminal history searches to educational verifications to reference checks — are considerably more effective and less legally or ethically treacherous. Even though more and more employers are using social media to vet their candidates, there are countless reasons that the practice is time-consuming at best and extremely risky at worst.
Be Careful What You Ask For: Asking a Job Applicant About Previous Pay May Violate the Equal Pay Act
Until recently, employers have been able to use an employee’s previous pay as a justification for different wages between employees of different sexes because it fell within the “any factor other than sex” exception to the EPA. In Rizo, the Fresno County Office of Education used a female employee’s prior pay to explain why it paid her less than men who performed equal work. The Ninth Circuit held that using prior pay to justify unequal wages perpetuated the very wage gap the EPA was designed to cure. Rizo makes it clear employers can no longer use previous pay to justify unequal wages under the “any factor other than sex” exception to the EPA. While Rizo is only binding in the Ninth Circuit (essentially the West Coast), employers in every state should be careful about asking job applicants about their previous pay and, in general, refrain from asking such questions.
