Recently, the City of Columbia, South Carolina passed Ordinance 2019-022, which will prohibit employers from inquiring into an applicant’s criminal history until after a conditional offer is made in writing. The law will also prohibit employers from conducting a background check on an applicant unless it is determined that the position warrants a background check and/or a background check is required by law.
Prior to performing the background check, the employer must provide the applicant with a conditional offer letter along with a Notice of Rights under the law; at this time the City has not prepared a sample “Notice of Rights” document.
Employers must also include specific information in job postings/announcements if the position will require a background check. Employers may only consider job-related conviction information for employment purposes and must utilize the steps outlined in the law to determine whether the conviction information is job-related.
Employers must identify the conviction item(s) that is the basis for the pre-adverse action and perform an Individualized Assessment. Employers must allow ten (10) business days between the pre and post adverse letters and must hold the position open. The law also contains specific definitions and data collection requirements.
Specifically, the legislation states:
Sec. 2-353. Considering Conviction History in Employment Decisions
(a) Identifying position as requiring background check. The employer shall not conduct background checks on applicants unless the employer 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.
(b) Posting job announcements. 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.”
(d) Notice of rights. Prior to any conviction history check, the employer shall send the applicant a conditional offer letter, notice of rights under this ordinance, and a request for authorization to conduct a background check, if so required.
(e) Limitation to conviction history. The employer shall not 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.
(f) Conviction history inquiry. The employer shall not inquire into or consider an applicant’s conviction history until after the applicant has received a conditional offer. If the employer is considering the conviction history of the applicant, the employer shall consider job-related convictions only. If a statute explicitly requires that certain convictions are automatic bars to employment, then those convictions shall be considered as well. Otherwise, no person shall be disqualified from employment, solely or in part because of a prior conviction, unless it is a job-related conviction. In determining if a conviction is job-related, the employer shall consider:
(1) Whether the conviction is directly related to the duties and responsibilities of that employment position;
(2) Whether the position offers the opportunity for the same or a similar offense to occur;
(3) Whether circumstances leading to the conduct for which the person was convicted will recur in the position; and
(4) The length of time since the offense occurred
(g) Pre-adverse action notice. If an applicant’s conviction history contains information that may be the basis for an adverse action, the employer shall:
(1) Identify the conviction item(s) that are the basis for the potential adverse action;
(2) Provide a copy of the conviction history report, if any;
(3) Provide examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide; and,
(4) Provide the applicant with an individualized assessment as described below.
(h) Individualized 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 (I0) business days, after issuance of the 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. 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 U.S. Equal Employment Opportunity Commission.
(i) Evidence of mitigation or rehabilitation. Evidence of mitigation or rehabilitation may be established by:
(1) Evidence showing that 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
(2) Any other evidence of mitigation or rehabilitation and present fitness provided, including, but not limited to, letters of reference.
(j) Final notice. If the employer makes an adverse decision, the applicant shall be informed of the final decision and that he or she may be eligible for other positions.
Sec. 2-356. Compliance
(a) Records. The employer shall retain application forms, records of employment, and other pertinent data and records required under this chapter, including but not limited to, communication with the applicant, for a minimum of three years, and shall allow access to such records to appropriate entities if a dispute shall arise regarding the provisions of this chapter.
(b) Data Collection. The employer 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. In addition, the employer shall maintain a record of the number of applicants with a record for a position:
(1) who were provided a pre-adverse action notice;
(2) who provided evidence of mitigation or rehabilitation;
(3) who were provided a final adverse notice; and
(4) who were hired.
Link to Columbia, SC Ordinance: Columbia, SC BTB Ordinance
The foregoing information is not offered as legal advice but is instead offered for informational purposes. First Advantage Corporation is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage Corporation makes no assurances regarding the accuracy, completeness, currency or utility of the above information. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly.
