An ongoing issue for employers and background screening firms is the question of what law applies when a criminal record is found in one state impacts an employment decision in another state. Since state reporting laws can vary widely, employers and screening firms are sometimes left without clear guidance if a criminal record can be reported or utilized because it is not clear which state law to apply.
For example, a number of states have variations of a seven year reporting rule concerning criminal records. A person may apply for a job in Ohio that does not have such a rule, but may have a conviction in California that falls outside of the California seven year reporting period. The matter is further complicated since there are occasions where the employer is restricted in some fashion, and other occasions where it is the screening firm that is restricted.
In “The Safe Hiring Manual: The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace” by Employment Screening Resources (ESR) President Lester Rosen, the following rule of thumb was recommended:
“The employer should first consider the law of the state where the employment is to occur. However, an employer or screening firm needs to understand where a consumer can possibly sue them, and consider the laws of that state. If the laws are contradictory, then a choice must be made as to the state that would most likely have jurisdiction over a lawsuit.”
A recent case from New York supports the logic of the ESR approach. In that case, a publisher based in New York made the decision in New York to close down their offices in Atlanta and to terminate the Atlanta employee. The terminated employee serviced accounts in ten states in the south and southeast but did NOT service any accounts in New York.
The terminated employee brought a legal action in state court in New York City on the basis of age discrimination in violation of both New York City and State of New York civil rights laws.
The publisher defended on the basis that there was not subject matter jurisdiction because the plaintiff did not live in New York and, other than attending corporate meetings in New York, had no connection to New York.
The trial court agreed and dismissed the case on the basis that there was no impact in New York even though the decision was made there. The Appellate court disagreed and ruled that that making the decision in New York was sufficient to invoke New York law, even for an out of state resident.
New York’s highest court, in a split 4-3 decision, reversed again, holding that there had to be an impact in New York to apply New York laws to an out of state plaintiff. In other words, a person from out of state cold not utilize the courts of New York to pursue a claim of a violation of rights just because the decision was made in New York, if there was no impact within the state. The Court noted that any other rule could result in inconsistent and arbitrary results. On the other hand, a requirement that there be an impact in the state is relatively simple to follow, and leads to predictable rules.
Although the case does not address background screening and criminal records directly, the logic of the case is very instructive in situations where multiple states may be involved. By following an impact rule, screening firms and employers are able to implement predictable rules that does not depend upon the happenstance of which state a person committed a crime, but instead focuses on the impact on where the employment incurs.
This case by no means settles the debate, but it does demonstrate the advantages to a logical approach to the multiple state issues. However, there can still be complicated scenarios, depending upon not only where the job is to be performed, but where the consumer is living when the background check was performed, and even possibly the location of the screening firm.
The bottom line is that professional background screening is far from merely being a data retrieval service, but is a professional endeavor that is highly regulated and requires a knowledgeable safe hiring partner.
The case is Hoffman v. Parade Publications, 2010 NY Slip Op 05706 (July 1, 2010)
For more information on background checks and the laws employers must follow for an effective and legal safe hiring program, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.