What's Private in the Private Workplace?

One notable example of potential misuse involved the City of Bozeman, MT, which implemented a screening policy for job applicants that required applicants to disclose “personal or business Web sites, including pages or memberships on any Internet-based chat rooms, social clubs such as Facebook, Google, Yahoo, YouTube.com, MySpace, etc.” (Molly McDonough, Town Requires Job Seekers to Reveal Social Media Passwords, ABAJournal.com (Jun. 19, 2009)) Although the city rescinded this admittedly controversial and potentially unlawful hiring policy on June 22, 2009 after extensive publicity and criticism, its policy is indicative of a diverging perception of workplace privacy when it concerns new technologies. In fact, some employers believe that nothing transmitted via new technology is private, and they require prospective employees to provide access to their password-protected personal e-mail and social networking site profiles as part of the employer's screening process.

While an employer's basic Internet search may not be facially unlawful, employers may still violate employment laws where they reject applicants or take adverse employment actions against current employees based on information obtained during Internet searches. If a prospective employer obtains information about an applicant, such as her race, religion or sexual orientation, and subsequently declines to interview that candidate because of that information, the employer may be liable for discrimination under various federal and state laws, such as Title VII of Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. ' 2000e et seq.; the Sexual Orientation Non-Discrimination Act (“SONDA”), NY CLS Exec ' 296 (2005); California Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code ' 12940(d); the Genetic Information Nondiscrimination Act of 2008 (“GINA”), 42 USCS ' 2000ff (effective Nov. 21, 2010) (employers may not “request, require, or purchase genetic information with respect to an employee or a family member of the employee”). Additionally, certain anti-discrimination laws prohibit inquiries that are likely to elicit information about an employee's status within a protected class. (See e.g., Americans with Disabilities Act (“ADA”) Amendments Act of 2008, 42 U.S.C. ' 12101, et seq. Section 12112(d)(4)(A) prohibits inquiries into employees' disabilities unless job-related and consistent with business necessity). Employers may not make inquiries that are “likely to elicit information about a disability.” (Equal Employment Opportunity Commission, EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (July 27, 2000)). Thus, any of the 35% of respondents in Career Builder's survey who agreed that information found on social networking sites caused them not to hire a job applicant could face liability under the ADA for discrimination if, for example, they relied on outdated social networking site content depicting or describing a job applicant as a former alcoholic or illegal drug abuser.

A Case in Point

A recent case demonstrates a pitfall of taking an adverse action against an employee who has criticized her supervisor or company on an online social networking site. (See articles by Lewis and Hilfer on page 1 of the March 2011 Issue of Employment Law Strategist.) Connecticut's American Medical Response ambulance service fired an employee for criticizing her employer on her Facebook page. The company had a policy barring employees from blogging or posting disparaging remarks on the Internet when discussing the company or supervisors. Another policy prohibited employees from depicting the company in any way over the Internet without company permission. The NLRB took the position that this form of critique, made on an employee's own time, computer, and Facebook page, constitutes concerted activity, particularly since co-workers who were Facebook friends commented on the posts. The parties reached an agreement one day before a hearing by an administrative law judge was scheduled to begin. American Medical (AM) agreed to revise its “overly broad” social media policies. The employee, Dawnmarie Souza, settled privately with AM. The main issue of the case, i.e., whether employee discussions on Facebook constitute concerted activity under labor laws, was not addressed in the settlement.

The case remains an important one as a cautionary warning to employers to tread carefully before firing employees for their social media activities. It raised many questions regarding how an employer may restrict employees' personal electronic communications and the appropriate use of information culled from social media.

Background Checks

While employers may conduct background checks on prospective and current employees, these background checks must comply with various state and federal laws. For example, most states have a cause of action for “public disclosure of private facts” or “false-light” invasion of privacy. Improper reference and background checks may trigger liability under these causes of actions. (See Machleder v. Diaz, 801 F.2nd 46, 52 (2nd Cir. 1986), cert. denied 479 U.S. 1088 (1987) (holding that false-light invasion of privacy claims are governed by the law of the state in which plaintiff resided and in which defendant conducted and disseminated information that formed the subject of the lawsuit)). The federal Fair Credit and Reporting Act (“FCRA”) (15 U.S.C. ” 1681 et seq.) regulates employers' use of various consumer reports, including those created by for-profit credit reporting agencies (“CRAs”), such as Experian, Trans Union, and Equifax. Anyone or any entity that, for a fee or on a nonprofit basis, regularly engages in assembling or evaluating information about a consumer is considered to be a CRA, including outside investigators, auditors, and outside counsel. FCRA does not, however, apply to information an employer obtains through means other than a CRA.

Background check reports regulated by FCRA include, but are not limited to, those concerning an individual's employment history, educational history, driving record, credit history, credit worthiness and criminal
background. Background reports fall into two categories: 1) “consumer reports,” covering any information that bears on an applicant or employee's “credit worthiness, character, general reputation, personal characteristics or mode of living”; and 2) “investigative consumer reports,” which include information obtained by interviews with neighbors, friends, or associates of the applicant or employee. (15 U.S.C. ' 1681a(d) – (e)).

An employer may not obtain either type of report from a CRA for a random purpose, nor may it hide the fact that it has requested it. Also, an employer may not obtain a background check unless it is for an “employment purpose,” such as employment, promotion, reassignment or retention. Even where an employer adopts procedures for ensuring compliance with FCRA's disclosure and authorization requirements, as required by the statute (see 15 U.S.C.
' 1681m(c)) the employer may violate FCRA if it obtains a consumer report or investigative consumer report for a reason that does not fall within one of the “permissible purposes” specified by the Statute. (See Russell v. Shelter Financial Services, 604 F. Supp. 201 (W.D. Mo 1984) (employer improperly requested report summarizing employee's credit history after employee had resigned)). The employee must receive notice that a report has been requested, the disclosures should provide the applicant or employee information about the agency providing the report and the individual's rights under FCRA, and consent in writing before it is run. (15 U.S.C. ” 1681b(b)2, 1681d(a)). For consumer reports, the employer must also provide the applicant or employee with a clear and conspicuous written disclosure, in a separate stand-alone document, stating that the employer may obtain a consumer report for employment purposes. For investigative consumer reports, the employer must also certify that it provided the applicant or employee a written statement notifying her of her rights under FCRA, including her right to request disclosure of additional information, and that the employer will provide this if the person requests it. (See 15 U.S.C.
' 1681d(c)). If a CRA relies on information obtained through a search of a social networking site, the report should reflect that.

Obsolete Information

CRAs may not include certain types of obsolete information. Such information includes bankruptcies antedating a report by more than 10 years; civil lawsuits and judgments with dates of entry antedating a report by more than seven years (or until the statute of limitations has expired, whichever is longer), paid tax liens (seven years), and accounts placed for collection or charged to profit and loss (seven years); arrests and indictments which antedate a report by more than seven years; any “other adverse item of information,” other than records of convictions which antedates a report by more than seven years. (15 U.S.C.
' 1681c).

Disclosure Obligation

Where an employer intends to take an adverse action based in whole or in part on the report, that employer must comply with FCRA's two-step disclosure obligation. An adverse action is defined as “a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.” (15 U.S.C. ' 1681a(k)(1)(B)(ii)). First, the employer must provide the applicant or employee with a copy of the report and description of the individual's rights under FCRA. (15 U.S.C. ' 1681b(b)(3)(A)).This advance notice requirement provides the applicant or employee an opportunity to clarify or correct any inaccurate information. Second, after the adverse action, the employer must provide the employee with: 1) notice of the adverse action; 2) the name, address, and phone number of the agency that provided the report; 3) notice that the CRA did not make the decision to take the adverse action and cannot provide the person specific reasons why the employer took the adverse action; and 4) notice of the person's right to obtain a free copy of the consumer or investigative report on which the employer based its decision and to dispute the accuracy or completeness of the information. (15 U.S.C. ' 1681m(a)). Failure to follow these requirements may result in liability. (See, e.g., Woodell v. United Way, 357 F. Supp. 2d 761 (S.D.N.Y. 2005)).

Prior Criminal Records

In addition, employers may obtain reports concerning employees' or applicants' prior criminal records, but do so at their own peril. An employer may not obtain a report from a CRA reflecting an arrest or indictment that antedates the report by more than seven years for an employee or prospective employee whose annual salary is or is reasonably expected to be less than $75,000 a year. (15 U.S.C. ” 1681c(a)(2), cI(a)(5), c(b)(3). See also Serrano v. Sterling Testing Sys., 557 F. Supp. 2d 688 (E.D. Pa 2008)). State laws may also prohibit employers from inquiring into arrests that do not lead to convictions. (See, e.g., N.Y. Exec. Law ' 296(16) (employers may not inquire into “any arrest or criminal accusation ' not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual.”); Cal. Lab. Code ' 432.7(a) (employers may not ask for “information concerning an arrest or detention that did not result in conviction, or information concerning a ' pre-trial or post-trial diversion program.”)).

Employers that base adverse employment decisions on an applicant or employee's prior arrest or conviction record may court liability under Title VII, as such a policy may adversely impact a protected group of employees. (See, e.g., Gregory v. Litton Systems, Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970) modified on other grounds, 472 F.2d 631 (1972) (The policy of Defendant under which Plaintiff was denied employment, i.e., the policy of excluding from employment persons who have suffered a number of arrests without any convictions, is unlawful under Title VII. It is unlawful because it has the foreseeable effect of denying black applicants an equal opportunity for employment)). If an employer or prospective employer considers arrest records in making adverse employment decisions, the employer may face liability if there is no relationship between the charges and the position sought and a likelihood that the applicant actually committed the alleged conduct. Moreover, since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny. (See, e.g., Gregory v. Litton Systems, 316 F. Supp. 401; Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert. denied, 406 U.S. 950 (1972); Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp. 952; Dozier v. Chupka, 395 F. Supp. 836 (D.C. Ohio 1975); U.S. v. City of Chicago, 411 F. Supp. 218 (N.D. Ill. 1974), aff'd. in rel. part, 549 F.2d 415 (7th Cir. 1977). It is the conduct, not the arrest or conviction per se, which the employer may consider in relation to the position sought.

Although courts have found that inquiries into criminal convictions may be more probative of job-related characteristics than arrest records, using them as a per se bar to employment may be unlawful. (See, e.g., Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975)). However, a conviction with a demonstrable job nexus may be valid in circumstances involving a recent conviction, a repeated history of convictions, or where additional evidence suggests that rehabilitation has not occurred. (See, e.g., EEOC v. Carolina Freight Carriers Corp., 723 F. Supp. 734, 752 (S.D. Fla. 1989)).

State laws also prohibit employers from making adverse employment decisions based on an employee or applicant's criminal record that might otherwise survive scrutiny under federal law. For example, Article 23-A of New York's Correction Law prohibits employers from taking adverse employment decisions based on a person's criminal conviction record unless it can show a direct relationship between the person's criminal conviction record “and the specific license or employment sought or held by the individual” or that the position “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” (NY CLS Correc ' 752. See, e.g., Matter of City of New York v. New York City Civ. Serv. Commn., 2006 NY Slip Op 4920, 1 (N.Y. App. Div. 1st Dep't 2006) (disqualifying of employee where there was no direct relationship between past offenses and position failed to comply with N.Y. Correct. Law ' 752); Black v. New York State Off. of Mental Retardation & Dev. Disabilities, 2008 NY Slip Op 28205 (N.Y. Sup. Ct. 2008) (agency's determination was arbitrary and capricious as the specific employment duties in the position applied for were not set out and the agency failed to specify the bearing, if any, that the applicant's convictions would have on her fitness or ability to perform such duties or responsibilities; the determination also failed to articulate in any meaningful way the positive factors, such as the applicant's graduation from community college with distinction)).

'Ban the Box' Laws

Recent legislation passed in several states prohibits employers from asking for an applicant's criminal background on an initial job application. (See, e.g., Massachusetts (G.L. c. 151B, ' 4(91 2); New Mexico (S.B. 254, 49 Leg., 2d Sess. (N.M. 2010)); and Connecticut (Conn. Gen. Stat. ' 46a-80)). Massachusetts, for example, passed “Ban the Box” legislation that prohibits both public and private employers from seeking disclosure of job applicants' criminal record information, including felony and misdemeanor convictions, prior to the interview stage of the hiring process. (G.L. c. 151B, ' 4(91 2)). “Ban the Box” laws reflect the idea that ex-offenders stand a better chance of being hired if they are able to reach a stage in the selection process that permits them to explain the circumstances surrounding a conviction in person.

Conclusion

The ever-changing landscape of technology creates challenges for both employers and employees and the laws are developing quickly in this bourgeoning area of practice. Employees need to be cognizant of limitations to employers' unfettered discretion to use employees' and applicants' past acts to limit employment opportunities. At the same time, employers need to take great caution to avoid inappropriate use of or access to background and private Internet information that has the potential to intrude on an employee's private life and moreover, to result in an illegal discriminatory hiring or firing. Ultimately, how the courts and our state and federal governments treat these issues will likely reframe all of our expectations of privacy in the future.

Wendi S. Lazar is a Partner at Outten & Golden LLP and Co-Chair of the firm's Executives and Professionals Practice Group. Seth M. Marnin is an Associate at the firm.

Employees, employers and courts have long wrestled with concepts of privacy, protected speech, and personal history in the workplace. The debate continues as new technologies and social networking sites enable employers to easily access employees' personal lives. Unlike their public sector counterparts, private-sector employees have historically enjoyed little protection against unreasonable property searches by their employers. Is the legal landscape changing? Employees and their counsel should review new federal and state laws and avenues of protection and enforcement when employers step over real and virtual boundaries.

Internet Searches of Applicants May Violate Employment Laws

In today's job market, employers can easily screen job applicants through basic Internet searches and, increasingly, by viewing their social networking site profiles. A frequently cited 2009 survey by CareerBuilder.com found that 45% of the 2,600 hiring personnel surveyed screen job applicants by viewing their social networking site profiles. How is this information being used and is its use permissible? This survey also found that 35% percent of these individuals reported that content found on social networking sites caused them not to hire the candidate. Is the access and use of such information permissible? And if so, what are the limitations, if any?

One notable example of potential misuse involved the City of Bozeman, MT, which implemented a screening policy for job applicants that required applicants to disclose “personal or business Web sites, including pages or memberships on any Internet-based chat rooms, social clubs such as Facebook, Google, Yahoo, YouTube.com, MySpace, etc.” (Molly McDonough, Town Requires Job Seekers to Reveal Social Media Passwords, ABAJournal.com (Jun. 19, 2009)) Although the city rescinded this admittedly controversial and potentially unlawful hiring policy on June 22, 2009 after extensive publicity and criticism, its policy is indicative of a diverging perception of workplace privacy when it concerns new technologies. In fact, some employers believe that nothing transmitted via new technology is private, and they require prospective employees to provide access to their password-protected personal e-mail and social networking site profiles as part of the employer's screening process.

While an employer's basic Internet search may not be facially unlawful, employers may still violate employment laws where they reject applicants or take adverse employment actions against current employees based on information obtained during Internet searches. If a prospective employer obtains information about an applicant, such as her race, religion or sexual orientation, and subsequently declines to interview that candidate because of that information, the employer may be liable for discrimination under various federal and state laws, such as Title VII of Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. ' 2000e et seq.; the Sexual Orientation Non-Discrimination Act (“SONDA”), NY CLS Exec ' 296 (2005); California Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code ' 12940(d); the Genetic Information Nondiscrimination Act of 2008 (“GINA”), 42 USCS ' 2000ff (effective Nov. 21, 2010) (employers may not “request, require, or purchase genetic information with respect to an employee or a family member of the employee”). Additionally, certain anti-discrimination laws prohibit inquiries that are likely to elicit information about an employee's status within a protected class. (See e.g., Americans with Disabilities Act (“ADA”) Amendments Act of 2008, 42 U.S.C. ' 12101, et seq. Section 12112(d)(4)(A) prohibits inquiries into employees' disabilities unless job-related and consistent with business necessity). Employers may not make inquiries that are “likely to elicit information about a disability.” (Equal Employment Opportunity Commission, EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (July 27, 2000)). Thus, any of the 35% of respondents in Career Builder's survey who agreed that information found on social networking sites caused them not to hire a job applicant could face liability under the ADA for discrimination if, for example, they relied on outdated social networking site content depicting or describing a job applicant as a former alcoholic or illegal drug abuser.

A Case in Point

A recent case demonstrates a pitfall of taking an adverse action against an employee who has criticized her supervisor or company on an online social networking site. (See articles by Lewis and Hilfer on page 1 of the March 2011 Issue of Employment Law Strategist.) Connecticut's American Medical Response ambulance service fired an employee for criticizing her employer on her Facebook page. The company had a policy barring employees from blogging or posting disparaging remarks on the Internet when discussing the company or supervisors. Another policy prohibited employees from depicting the company in any way over the Internet without company permission. The NLRB took the position that this form of critique, made on an employee's own time, computer, and Facebook page, constitutes concerted activity, particularly since co-workers who were Facebook friends commented on the posts. The parties reached an agreement one day before a hearing by an administrative law judge was scheduled to begin. American Medical (AM) agreed to revise its “overly broad” social media policies. The employee, Dawnmarie Souza, settled privately with AM. The main issue of the case, i.e., whether employee discussions on Facebook constitute concerted activity under labor laws, was not addressed in the settlement.

The case remains an important one as a cautionary warning to employers to tread carefully before firing employees for their social media activities. It raised many questions regarding how an employer may restrict employees' personal electronic communications and the appropriate use of information culled from social media.

Background Checks

While employers may conduct background checks on prospective and current employees, these background checks must comply with various state and federal laws. For example, most states have a cause of action for “public disclosure of private facts” or “false-light” invasion of privacy. Improper reference and background checks may trigger liability under these causes of actions. ( See Machleder v. Diaz , 801 F.2nd 46, 52 (2nd Cir. 1986), cert. denied 479 U.S. 1088 (1987) (holding that false-light invasion of privacy claims are governed by the law of the state in which plaintiff resided and in which defendant conducted and disseminated information that formed the subject of the lawsuit)). The federal Fair Credit and Reporting Act (“FCRA”) (15 U.S.C. ” 1681 et seq.) regulates employers' use of various consumer reports, including those created by for-profit credit reporting agencies (“CRAs”), such as Experian, Trans Union, and Equifax. Anyone or any entity that, for a fee or on a nonprofit basis, regularly engages in assembling or evaluating information about a consumer is considered to be a CRA, including outside investigators, auditors, and outside counsel. FCRA does not, however, apply to information an employer obtains through means other than a CRA.

Background check reports regulated by FCRA include, but are not limited to, those concerning an individual's employment history, educational history, driving record, credit history, credit worthiness and criminal
background. Background reports fall into two categories: 1) “consumer reports,” covering any information that bears on an applicant or employee's “credit worthiness, character, general reputation, personal characteristics or mode of living”; and 2) “investigative consumer reports,” which include information obtained by interviews with neighbors, friends, or associates of the applicant or employee. (15 U.S.C. ' 1681a(d) – (e)).

An employer may not obtain either type of report from a CRA for a random purpose, nor may it hide the fact that it has requested it. Also, an employer may not obtain a background check unless it is for an “employment purpose,” such as employment, promotion, reassignment or retention. Even where an employer adopts procedures for ensuring compliance with FCRA's disclosure and authorization requirements, as required by the statute (see 15 U.S.C.
' 1681m(c)) the employer may violate FCRA if it obtains a consumer report or investigative consumer report for a reason that does not fall within one of the “permissible purposes” specified by the Statute. ( See Russell v. Shelter Financial Services , 604 F. Supp. 201 (W.D. Mo 1984) (employer improperly requested report summarizing employee's credit history after employee had resigned)). The employee must receive notice that a report has been requested, the disclosures should provide the applicant or employee information about the agency providing the report and the individual's rights under FCRA, and consent in writing before it is run. (15 U.S.C. ” 1681b(b)2, 1681d(a)). For consumer reports, the employer must also provide the applicant or employee with a clear and conspicuous written disclosure, in a separate stand-alone document, stating that the employer may obtain a consumer report for employment purposes. For investigative consumer reports, the employer must also certify that it provided the applicant or employee a written statement notifying her of her rights under FCRA, including her right to request disclosure of additional information, and that the employer will provide this if the person requests it. (See 15 U.S.C.
' 1681d(c)). If a CRA relies on information obtained through a search of a social networking site, the report should reflect that.

Obsolete Information

CRAs may not include certain types of obsolete information. Such information includes bankruptcies antedating a report by more than 10 years; civil lawsuits and judgments with dates of entry antedating a report by more than seven years (or until the statute of limitations has expired, whichever is longer), paid tax liens (seven years), and accounts placed for collection or charged to profit and loss (seven years); arrests and indictments which antedate a report by more than seven years; any “other adverse item of information,” other than records of convictions which antedates a report by more than seven years. (15 U.S.C.
' 1681c).

Disclosure Obligation

Where an employer intends to take an adverse action based in whole or in part on the report, that employer must comply with FCRA's two-step disclosure obligation. An adverse action is defined as “a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.” (15 U.S.C. ' 1681a(k)(1)(B)(ii)). First, the employer must provide the applicant or employee with a copy of the report and description of the individual's rights under FCRA. (15 U.S.C. ' 1681b(b)(3)(A)).This advance notice requirement provides the applicant or employee an opportunity to clarify or correct any inaccurate information. Second, after the adverse action, the employer must provide the employee with: 1) notice of the adverse action; 2) the name, address, and phone number of the agency that provided the report; 3) notice that the CRA did not make the decision to take the adverse action and cannot provide the person specific reasons why the employer took the adverse action; and 4) notice of the person's right to obtain a free copy of the consumer or investigative report on which the employer based its decision and to dispute the accuracy or completeness of the information. (15 U.S.C. ' 1681m(a)). Failure to follow these requirements may result in liability. ( See, e.g., Woodell v. United Way , 357 F. Supp. 2d 761 (S.D.N.Y. 2005)).

Prior Criminal Records

In addition, employers may obtain reports concerning employees' or applicants' prior criminal records, but do so at their own peril. An employer may not obtain a report from a CRA reflecting an arrest or indictment that antedates the report by more than seven years for an employee or prospective employee whose annual salary is or is reasonably expected to be less than $75,000 a year. (15 U.S.C. ” 1681c(a)(2), cI(a)(5), c(b)(3). See also Serrano v. Sterling Testing Sys. , 557 F. Supp. 2d 688 (E.D. Pa 2008)). State laws may also prohibit employers from inquiring into arrests that do not lead to convictions. (See, e.g., N.Y. Exec. Law ' 296(16) (employers may not inquire into “any arrest or criminal accusation ' not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual.”); Cal. Lab. Code ' 432.7(a) (employers may not ask for “information concerning an arrest or detention that did not result in conviction, or information concerning a ' pre-trial or post-trial diversion program.”)).

Employers that base adverse employment decisions on an applicant or employee's prior arrest or conviction record may court liability under Title VII, as such a policy may adversely impact a protected group of employees. ( See, e.g., Gregory v. Litton Systems, Inc. , 316 F. Supp. 401, 403 (C.D. Cal. 1970) modified on other grounds, 472 F.2d 631 (1972) (The policy of Defendant under which Plaintiff was denied employment, i.e. , the policy of excluding from employment persons who have suffered a number of arrests without any convictions, is unlawful under Title VII. It is unlawful because it has the foreseeable effect of denying black applicants an equal opportunity for employment)). If an employer or prospective employer considers arrest records in making adverse employment decisions, the employer may face liability if there is no relationship between the charges and the position sought and a likelihood that the applicant actually committed the alleged conduct. Moreover, since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny. ( See, e.g., Gregory v. Litton Systems , 316 F. Supp. 401; Carter v. Gallagher , 452 F.2d 315 (8th Cir. 1971), cert. denied, 406 U.S. 950 (1972); Reynolds v. Sheet Metal Workers Local 102 , 498 F. Supp. 952; Dozier v. Chupka , 395 F. Supp. 836 (D.C. Ohio 1975); U.S. v. City of Chicago , 411 F. Supp. 218 (N.D. Ill. 1974), aff'd. in rel. part, 549 F.2d 415 (7th Cir. 1977). It is the conduct, not the arrest or conviction per se, which the employer may consider in relation to the position sought.

Although courts have found that inquiries into criminal convictions may be more probative of job-related characteristics than arrest records, using them as a per se bar to employment may be unlawful. ( See, e.g., Green v. Missouri Pacific Railroad , 523 F.2d 1290 (8th Cir. 1975)). However, a conviction with a demonstrable job nexus may be valid in circumstances involving a recent conviction, a repeated history of convictions, or where additional evidence suggests that rehabilitation has not occurred. ( See, e.g., EEOC v. Carolina Freight Carriers Corp. , 723 F. Supp. 734, 752 (S.D. Fla. 1989)).

State laws also prohibit employers from making adverse employment decisions based on an employee or applicant's criminal record that might otherwise survive scrutiny under federal law. For example, Article 23-A of New York's Correction Law prohibits employers from taking adverse employment decisions based on a person's criminal conviction record unless it can show a direct relationship between the person's criminal conviction record “and the specific license or employment sought or held by the individual” or that the position “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” (NY CLS Correc ' 752. See, e.g., Matter of City of New York v. New York City Civ. Serv. Commn ., 2006 NY Slip Op 4920, 1 (N.Y. App. Div. 1st Dep't 2006) (disqualifying of employee where there was no direct relationship between past offenses and position failed to comply with N.Y. Correct. Law ' 752); Black v. New York State Off. of Mental Retardation & Dev. Disabilities , 2008 NY Slip Op 28205 (N.Y. Sup. Ct. 2008) (agency's determination was arbitrary and capricious as the specific employment duties in the position applied for were not set out and the agency failed to specify the bearing, if any, that the applicant's convictions would have on her fitness or ability to perform such duties or responsibilities; the determination also failed to articulate in any meaningful way the positive factors, such as the applicant's graduation from community college with distinction)).

'Ban the Box' Laws

Recent legislation passed in several states prohibits employers from asking for an applicant's criminal background on an initial job application. (See, e.g., Massachusetts (G.L. c. 151B, ' 4(91 2); New Mexico (S.B. 254, 49 Leg., 2d Sess. (N.M. 2010)); and Connecticut (Conn. Gen. Stat. ' 46a-80)). Massachusetts, for example, passed “Ban the Box” legislation that prohibits both public and private employers from seeking disclosure of job applicants' criminal record information, including felony and misdemeanor convictions, prior to the interview stage of the hiring process. (G.L. c. 151B, ' 4(91 2)). “Ban the Box” laws reflect the idea that ex-offenders stand a better chance of being hired if they are able to reach a stage in the selection process that permits them to explain the circumstances surrounding a conviction in person.

Conclusion

The ever-changing landscape of technology creates challenges for both employers and employees and the laws are developing quickly in this bourgeoning area of practice. Employees need to be cognizant of limitations to employers' unfettered discretion to use employees' and applicants' past acts to limit employment opportunities. At the same time, employers need to take great caution to avoid inappropriate use of or access to background and private Internet information that has the potential to intrude on an employee's private life and moreover, to result in an illegal discriminatory hiring or firing. Ultimately, how the courts and our state and federal governments treat these issues will likely reframe all of our expectations of privacy in the future.

Wendi S. Lazar is a Partner at Outten & Golden LLP and Co-Chair of the firm's Executives and Professionals Practice Group. Seth M. Marnin is an Associate at the firm.