Excerpted from Lexology By Seyfarth Shaw LLP
Seyfarth Synopsis: The Columbia, South Carolina Mayor Steve Benjamin has signed a new law prohibiting employers – including private employers – from inquiring about an applicant’s criminal history until receipt of a conditional offer of employment and requiring the addition of language to job postings/applications.
Recent Amendment to “Conviction and Wage History Prohibition in City Employment and by City Contracts and City Vendors”
Effective August 6, 2019, Columbia, South Carolina Ordinance 2019-022 prohibits employers from, among other things, inquiring into an applicant’s job-related conviction history before a conditional job offer is made. Employers should immediately assess whether they are covered by the new ordinance and, if so, whether they need to update their employment applications and other pre-hire screening policies.
The ordinance applies to the City of Columbia, private employers, government contractors, any person regularly employing five or more persons, any person acting as an agent of an employer, directly or indirectly, or any person undertaking for compensation to procure employees or opportunities for employment. Employment means any occupation, vocation, job, or work for pay, including temporary or seasonal work, contracted work and work through the services of a temporary or other employment agency, or any form of vocational or educational training with or without pay.
Job Announcements and Applications
All job announcements and position descriptions shall contain the following information if the position requires a background check, unless otherwise required by law: “This position is subject to a background check for any convictions directly related to its duties and responsibilities. Only job-related convictions will be considered and will not automatically disqualify the candidate.” Job applications shall not inquire into an applicant’s conviction history.
Notice of Rights
Prior to any conviction history check, an employer shall send the applicant a conditional offer letter, notice of rights under the ordinance, and a request for authorization to conduct a background check, if so required. The City has not yet published a model Notice of Rights.
Conviction History in Employment Decision
Employers shall not conduct background checks on applicants unless it has made a good faith determination that the relevant position is of such sensitivity that a background check is warranted (or if a background check is required by law). Nor shall employers use or access the following criminal records in relation to a background check: records of arrest not followed by a valid conviction, sealed, dismissed, or expunged convictions, misdemeanor convictions where no jail sentence can be imposed, and infractions.
A conditional offer must be given to an applicant before an employer shall inquire (verbally or in writing) into or consider an applicant’s job-related conviction history. If a statute explicitly requires that certain convictions are automatic bars to employment, than those convictions shall be considered as well. In determining if a conviction is job-related, employers may consider whether there is a direct relation to the duties and responsibilities of the position; whether the position offers the opportunity for the same or a similar offense to occur; whether circumstances leading to the conduct for which the person was convicted will recur in the position; and the length of time since the offense occurred.
Adverse Action and Individualized Assessment
If an applicant’s conviction history contains information that may be the basis for an adverse action, the employer shall identify the conviction item(s) in a pre-adverse action notice, provide a copy of the conviction history report (if any), provide examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide, and provide the applicant with an individual assessment.
A job-related conviction shall not be the basis for an adverse action if the applicant can show evidence of mitigation or rehabilitation and present fitness to perform the duties of the position sought. The applicant shall have ten (10) business days, after issuance of the pre-adverse action notice, to respond with any information rebutting the basis for the adverse action, including challenging the accuracy of the information and submitting mitigation or rehabilitation evidence. Evidence of mitigation/rehabilitation may be established by evidence showing at least one year has elapsed since release from any correctional institution without subsequent conviction of a crime, and evidence showing compliance with terms and conditions of probation or parole; or any other evidence of mitigation or rehabilitation and present fitness provided, including, but not limited to, letters of reference.
The employer shall hold the position open until it makes the final employment decision based on an individualized assessment of the information submitted by the applicant and the factors recommended by the EEOC. If the employer makes an adverse decision, the applicant shall be informed of the final decision and that they may be eligible for other positions.
All information pertaining to an applicant’s background check obtained in conjunction with the hiring process shall remain confidential, and shall not be used, distributed, or disseminated by the employer or any of its agencies, or its vendors, to any other entity, except as required by law.
Employers shall retain application forms, records of employment and other pertinent data and records (including communication with the applicant) for a minimum of three years and shall allow access to such records to appropriate entities if a dispute arises.
Additionally, employers shall maintain a record of the number of positions requiring background checks and, for those positions, shall maintain a record of the number of applicants and the number of applicants who were provided a conditional offer. Employers also shall maintain a record of the number of applicants with a record for a position who were provided a pre-adverse action notice; who provided evidence of mitigation/rehabilitation; who were provided a final adverse notice; and who were hired.
Employers located in Columbia, South Carolina should immediately determine whether they need to revise job applications, interview guidelines, and policies and procedures for criminal background checks. Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history information and applicable fair credit reporting laws.
Excerpted from Lexology By Seyfarth Shaw LLP