Columbia, South Carolina passed an effective decree on August 6, 2019,1 limit employers’ use of criminal background checks; and prohibit employers from asking questions about salary history on job forms. The capital of South Carolina is the last location to approve such a measure, after several others that passed similar decrees last year.two
The new provision of the city code “Conviction and Wage History Prohibition in Employment in the City and by City Contractors and Sellers” imposes exhaustive limitations on private employers who consider the conviction history in employment decisions and also prohibits employers from including questions on candidates’ salary history on job applications. The decree contains additional prohibitions for employees of the City of Columbia that are inapplicable to private employers.
Criminal history record restrictions and requirements
The sentencing history measure imposes requirements on employers at almost every stage of the background check process, including when an employer decides that a “background check” (which is not specifically defined in the ordinance) should be fulfilled. The decree prohibits employers from conducting “background checks” of candidates, unless they have made a “determination in good faith” that the position in question “is of such sensitivity that a background check is justified” or if a check background is required by law. Once an employer decides that a particular job will require a background check, the ordinance requires that job ads and job descriptions provide the following statement: “This job is subject to a background check for any convictions directly related to your roles and responsibilities. Only work-related convictions will be considered and will not automatically disqualify the candidate. ”The ordinance also forbids that job applications contain questions about the candidate’s conviction history.
The decree prohibits any employer from conducting a “conviction history check” until the applicant has received a written conditional offer letter, a document notifying the applicant of the rights provided for in the decree and an application for authorization to conduct a background check. . The decree further states that employers cannot use or access arrest records not followed by a “valid” conviction; convictions for misdemeanor in which no prison sentence can be imposed; convictions sealed, rejected or eliminated; and infractions.
When assessing a candidate’s record of convictions, employers can only consider work-related convictions (unless a law explicitly requires certain convictions to be automatic barriers to employment) and cannot disqualify a candidate based, even in part , in non-work related convictions. If an employer determines that a conviction is work-related, the ordinance further requires the employer to consider the following:
- Whether the conviction is directly related to the duties and responsibilities of that position;
- Whether the position offers an opportunity to experience the same or similar offense;
- Whether the circumstances that led to the conduct for which the person was convicted will occur in office; and
- The period of time since the crime occurred.
The ordinance may place additional requirements on employers to send pre-adverse action notices already required by the Fair Credit Reporting Act (FCRA). If an employer can disqualify a candidate based, even in part, on the candidate’s conviction history, the decree requires employers to send notice of pre-adverse action that must also identify the convictions that are the basis for potential adverse action and provide examples of mitigation or rehabilitation evidence that the applicant can provide voluntarily (examples of which are included in the ordinance).
After the employer issues the aforementioned notification, the applicant has 10 business days to provide information questioning the accuracy of the information, evidence of mitigation or rehabilitation, or anything else that could refute the basis for the adverse action. The decree requires employers to hold the position open until they make the final employment decision. After 10 business days have elapsed, the employer must conduct an individualized assessment to consider the evidence of the candidate’s rehabilitation or mitigation and the candidate’s ability to perform the functions of the intended position, as well as the factors that the EEOC recommended in its Execution Guide 2012 on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.3
If the employer decides not to offer the candidate employment, the employer must provide final notice of that decision. The ordinance requires that the notification include a statement that the candidate may be eligible for other positions.
The ordinance also contains several other administrative requirements. First, the ordinance requires that background check information remain confidential and not be distributed to any other entity, except as required by law. Second, the decree requires employers to retain application forms, employment records and similar records for at least three years. It even requires employers to keep a record of the number of jobs requiring background checks and, for those jobs, records of the number of candidates. The employer must also keep records of the number of candidates who (a) received a conditional offer; (b) received prior notice of adverse action; (c) provided evidence of mitigation or rehabilitation; (d) received a final adverse warning; and (e) were hired.
Salary history requirements
The requirements of the ordinance regarding salary history information are more limited than criminal history protections. The decree essentially excludes private employers from inquiring about a candidate’s salary history on the employment form. The other ordinance salary history measures apply only to Columbia City employees.
Next steps
At a minimum, employers hiring in Columbia, South Carolina should consider:
- Conduct a privileged review of your background check procedures for compliance with the ordinance, including to determine which positions meet the ordinance’s criteria to require background checks;
- Reviewing job postings and descriptions to ensure that the appropriate language on background checks is included;
- Removing questions about criminal history and salary history from the job application;
- Evaluate the review process to determine whether candidates’ sentencing histories are job related, as required by the decree; and
- Review, if they are multi-state employers, the application process for complying with the prohibition of use legislation applicable to each jurisdiction in which they hire.
Footnotes