The Aspects of Employment LawGrass Roots of Banning the Box: Applicants vs. Employer

3/1/2015A PathfinderJobyna Terry

Table of Contents

I. Introductiona. Background…………………………………………………………………………………………………………………..….1b. Scope/Audience………………………………………………………………………………………………………….….1,2c. Resources Used………………………………………………………………………………………………………………..2

II. Background checks……………………………………………………..…………………………………………………………..3a. Internet Sources………………….……………………………………………………………………………………………..4

i. EEOC Enforcement Guidance………………………………………………………………….…………4, 5ii. All of Us or None…………………………………………………………………………………………….…..4

b. Legal Treatises……….………………………………………………………………………………………………………..5i. Hiring and Firing....................................................................................................5

ii. Labor and Employment Law………………………………………………………………………………..5c. Practice Specific Sources……………………………………………………………………………………………………6

i. Statistical Tools to Inform and Protect Against Perceptions of Discrimination Tied to Background Checks……………………………………………………………………………………………...7

d. Law Review………………………………………………………………………………………………………………………..7,8i. University of Pennsylvania Journal of Labor and Employment Law(U. Pa. J. Lab. & Emp.

L.)……………………………………………………………………………………………………………………….……8e. American Law Report……………………………………………………………………………………………………………9

i. What Constitutes Reverse or Majority Race or National Origin Discrimination Violative of Federal Constitution or Statutes—Public Employment Cases………………………………….9

ii. What Constitutes "Consumer Report" Within Meaning of Fair Credit Reporting Act (FCRA)………………………………………………………………………………………………………………….10

III. Disparate Impact/Treatment of Discrimination……………………………………………………………………….10a. Legal Treatises…………………………………………………………………………………………………………….…….10

i. American Business Law Journal (Am. Bus. L.J.)………………………………………………….10ii. Labor and Employment Law…………………………………………………………………………………11

iii. 32 Berkeley J. Emp. & Lab. L. 395…………………………………………………………………........11b. Practice Specific Sources…………………………………………………………………….………………………..……12

i. HR Policy Handbook………………………………………………………………………………….……..…..12ii. Employment Discrimination Coordination………….………………………………..…………..….13

c. Internet Sources……………………………………………………………………………………………………………....…14i. The U.S. Equal Employment Opportunity Commission…………………………………………14

IV. Employer Liability for the Acts of Employees…………………………………………………………………………….15a. Legal Treatise…………………………………………………………………………………………………………………….15

i. 3 Charlotte L. Rev. 503…………………………………………………………………………………………15b. Practice Specific Sources……………………………………………………………………………………………………16

i. Cause of Action 2nd ………………………………………………………….………………………………...16c. Internet Sources……………………………………………………………………………………………………………….17

i. The U.S. Equal Employment Opportunity Commission……………………………………..17d. Note About Sources…………………………………………………………………………………………………………18

V. Pathfinder Report………………………………………………………………………………………………………………..…18

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I. Introduction

Background. The private sector is any company or person who has a business that is not

run through the government. The public sector is the opposite, an organization that is operated by

the government. Read more: http://www.businessinsider.com/private-sector-vs-public-sector-

2011-6#ixzz3SlruTBMp. The private sector, which must worry about liability for “wrongful

hiring” tends to perform competent background checks to avoid that liability. It is not as clear as

to how the public sector conducts its background checks. Employer reliance on background

checks in recent years has exploded. “Ban the Box,” more properly coined “Move the Box,” is a

national grassroots movement that seeks to decrease unemployment and recidivism among

individuals with criminal histories by giving them a fair opportunity to obtain employment. Ban

the Box asks employers to eliminate the “box” from initial job applications that requires

individuals to disclose criminal convictions.

By adopting Ban the Box, employers, both private and public, decrease their potential

liability for hiring practices that, while facially non-discriminatory, may ultimately have a

disparate impact on protected classes of individuals. Furthermore, the box, in and of itself, acts

as a psychological deterrent and thus prohibits people from even applying for positions for which

they are well qualified. By adopting this policy, the available employment pool of qualified

candidates is increased.

Ban the box laws are an effort to level the playing field and prevent applicants with

arrests and/or convictions from being per se rejected before the applicant has the opportunity to

interview. Thus, arrests and/or convictions are considered, if at all, only after the applicant has

had the opportunity to demonstrate he or she is at least as qualified as the other candidates.

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Employers typically can, however, inquire about convictions either after the applicant has been

selected for an interview or after a conditional offer of employment has been made.

Scope/Audience. This pathfinder is created for legal researchers such as employers, law

students, and attorneys who have knowledge of the resources mentioned. If someone lacks this

knowledge and wishes to explore these resources this pathfinder provides various roadmaps to

help them in their research. View the sections that follow the sources for the roadmaps.

Due to the legal controversy surrounding “Banning the Box” and EEOC regulations

regarding criminal background checks, there have been several changes emerging in the

Employment area of law, this pathfinder seeks to inform its audience of the changes to the hiring

process (i.e. criminal background checks) and the acceptance of these changes among both

Private and Public Sectors. More importantly, this pathfinder points the researcher to sources

which can help guide them to avenues to use in their advocacy for those affected.

Resources: The primary resources on these employment law issues originate

from the EEOC’s Title VII of the 1964 Civil Rights Act, because of the disproportionate effect

of this practice on people of color, who are otherwise qualified for this position they have

applied for. Additionally, there is a growing amount of case law serving as primary resources as

applicants feel they have been discriminated against based on their criminal history, the

researcher’s time should be spent reviewing Title VII of the 1964 Civil Rights Act and secondary

sources. When searching secondary sources and practice materials on these issues the researcher

should begin with criminal background checks. The secondary sources and practice materials

are the focus of this pathfinder. This pathfinder is not state specific and serves as a foundation

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for research in these areas and should not to be considered all inclusive in terms of resources

available.

II. Background checks

Background checks are a common practice that employers use to screen potential

applicants. Often this practice can affect those persons who have an adverse background,

typically African-American and Hispanics. Employers use background checks to shield them

from workplace violence and potential liability for negligent hiring. Because of the newness

of this topic, is it best for researchers to go to the primary source, which is the EECO

Enforcement Guide.

A. Internet Sources:

There is a wide array of Internet sources discussing “Ban the Box” initiatives. As

a researcher, you should insure the information used is from a creditable website. The

Internet sources in this section provide you with information that is outside of case law or

substantive law. They provide information from Ban the Box starter kits to information

on how many states are conforming to banning the box. These sites are a few resources

along with many others that can lend support in your research.

1. Equal Employment Opportunity Commission (EEOC) Enforcement Guide is a

source that is compiled of laws and regulations that employers must follow when they are

established in the U.S. The laws are federal laws that are enforced by the EEOC. The

regulations are those under Title 29 of the Code of Federal Regulations. These regulations are

updated annually and are a creditable source. This Guide provides employers and employees

with information regarding the hiring process. It also provides information about employee and

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employer rights. The EEOC itself provides employees with supports in the case they have been

discriminated against. In the case that employers or employees have questions regarding the

employment regulations, the EEOC Enforcement Guide provides question and answer sections.

Citation: The U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov (last visited April 14, 2015).Retrieval Method: Google search using “EEOC Guidance.” Updates: No date provided for the last update.Other access: The site can also be accessed from the CSL library’s A-Z Index of Databased by clicking Labor and Employment Law Resource Center. After logging into the website scroll down and you will find EEO Compliance on the left panel under BNA Manuals. After clicking the EEO Compliance link you will be able to click Equal Employment Opportunity Commission, which will give you a hyperlink directly to the website. Research Note: When researching your case it is important to consider what hiring practices does the employer have in place when considering hiring someone with an adverse criminal background. Also think about whether there was just an arrest/detention or a conviction of applicant.

2. All of us or None is a national initiative started by persons whom were previously-

incarcerated, who decided to fight against discrimination that they were faced with after being

released. This initiative also fights for the basic human rights of the previously-incarcerated and

their face-off with employers based on their criminal backgrounds. This was also the grass-roots

startup of the “Ban the Box” movement in San Francisco. This site provides information on the

social impact those previously-incarcerated persons and their families. It especially addresses

prisoners with children.

Citation: All of us or None, http://www.prisonerswithchildren.org/our-projects/allofus-or-none/ (last visited April 6, 2015). Retrieval Method: If you go to the Prisoners with children website you can access all of us or none by clicking on the projects tab at the top of the website. Updates: This site is updated 2015. Research Note: It is important to think about where and why the initiative started.

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B. Legal Treatises: Legal Treatises are considered to be a secondary resource. Legal Treatises are

discussions on the law as it pertains to a particular legal subject. They may be of

scholarly nature or they may lean more towards a practitioner to server as a manual or

handbook. Many Legal Treatises are available online. Different treatises serve different

purposes depending on the user. Legal Treatises are frequently cited by expert witnesses

and in court opinions.

1. Hiring and Firing is legal treatises that is used a manual for the hiring and firing of

applicants and employees. Specifically, Chapter 4 addresses Background Checks and

Other Pre-Employment. It addressed the state laws regarding criminal convictions and

applicant screening. It also advises employers to keep a check on its state’s changing

legislature to ensure its company’s compliance. This is a great source to understand the

employers’ duty in hiring and firing whether, public or private entities. Take notice that

when reviewing this document that it encourages the employer to determine whether they

are permitted to ask about arrests or pending criminal charges. These are things that may

not be reflected on the criminal background check but may be disclosed by the applicant.

Citation: Hiring and Firing § 4.03; Chapter 4: Background Checks and Other Pre-Employment InquiriesRetrieval Method: Access LexisNexis Advance and search “Applicant Screening /p "criminal"” then check secondary sources.Update: There was a 2015 update. Research Note: For more information on the new EEOC regulations visit the EEOC website if you would like more detailed information on those changes.

2. Labor and Employment Law’s author has been a labor lawyer for over 40 years and has

extensive experience in both private sector and public sector. This legal treatise has

several volumes that are update frequently, with the latest update being February 2015.

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Part IX General Employment Law addresses Applicant Screening. Specially, Chapter

257.07 addresses Pre-Employment Arrest and Conviction Records and Credit Checks.

Within the chapter the author writes about the legitimate interest that employers have in

knowing whether applications are trustworthy and honest. A method employers use is

the criminal background check. It is important to note that the Legal Treatise updates the

reader on the changes that the EEOC has made regarding Consideration of Arrest and

Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of

1964. This re-issued version is in strong opposition of the use of arrest records as the

basis for a decision not to hire an applicant.

Citation: 10-257 Labor and Employment Law § 257.07Retrieval Method: Access LexisNexis Advance and search “Applicant Screening /p "criminal"” then check secondary sources.Update: An update was made February 2015.Research Note: It is important to shepardize resources when conducting research to discover what sources or authorities they have relied upon when writing the treatise. Allow review the footnotes at the bottom of the document.

C. Practice Specific Sources:

This resource is typically used for attorney researchers but can also be used for

student researchers. Practice specific sources give a wide variety of secondary sources

for practitioners to use in their practices. Once the researcher types in a particular topic

in the search engine(i.e. Westlaw Next Practitioner Insight or Bloomberg BNA Insights)

they will be allowed to review a wide variety of primary and secondary sources.

Specifically, the researcher can review case law, forms, briefs, and trial documents

relating to the topic they are researching.

1. Statistical Tools to Inform and Protect Against Perceptions of Discrimination Tied to

Background Checks is an article composed by both Charles Diamond and Jonathan

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Blumenstein. In the beginning of this article, the authors write about how the court is

reluctance to embracing the concept of disparate impact. The article then moves along to

talk about how statistics can be used to determine if the use of the background check and

specific hiring policies are discriminatory. The authors then compare using those

background checks and policies to rolling dice and how it is unlikely for the result to be

discriminatory. But they go back and say rolling dice is not something that requires

decision making but hiring is all about decision making. This decision making could be

influenced by human bias. This is important for researchers to note because although an

employer may have policies in place to protect them from discrimination suits, a hiring

manager or recruiter who is doing the hiring process may have a human bias against

someone who has an adverse background check.

Citation: BNA Insights—Labor and Employment Law: 06/04/2014: Statistical Tools to Inform and Protect Against Perceptions of Discrimination Tied to Background ChecksRetrieval Method: BNA Insight can also be accessed from the CSL library’s A-Z Index of Databased by clicking Labor and Employment Law Resource Center. After logging into the website, type “disparate impact” in the top right-hand corner. Click BNA Insights from the search results and out of the twelve (12) documents click on Statistical Tools to Inform and Protect Against Perceptions of Discrimination Tied to Background Checks.Updates: This document was last updated on June 2014.

D. Law Review:

Law Reviews are scholarly publications sponsored by law schools. The vast majority are

managed by law students. The articles are usually written by professors, except the Notes

and Comments at the back of the issues, which are usually written by the students. Law

review articles are another great secondary source for legal research, valuable for the

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depth in which they analyze and critique legal topics, as well as their extensive references

to other sources, including primary sources.

1. University of Pennsylvania Journal of Labor and Employment Law(U. Pa. J. Lab. &

Emp. L.) addresses the stigma of people with criminal background checks being deterred

from applying to positions because of their backgrounds. It also addresses how

employers are scared to hire those with criminal backgrounds out of fear of liability for

discrimination and negligent hiring. It offers a background check balancing test that

helps employers understand the protections that applicants have against discrimination on

the basis of criminal background. Applicants have protections under both Federal and

State law. This is something for researchers should take in to consideration if their state

does not have ban the box laws specifically. States sometimes adopt the federal rules that

are in place, but a researcher should check to see if there are any distinctions.

Citation: 8 U. Pa. J. Lab. & Emp. L. 981Retrieval Method: Access Westlaw Next and click on the practice areas tab. Then click on the Employment search engine and type “background checks”. Once the search results populate, scroll down and type “pre-employment” within the terms box. Update: Document was last updated Summer 2006. Research Note: Keycite document to find other sources and authority that author used in their article. Also take a look at the sources that appear on the right panel (Related Documents) once you have gained access to the original document. Those are other secondary resources that can prove helpful in your research.

E. American Law Reports (ALR)

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American Law Reports (ALR) are annotations that are not comprehensive like the

legal encyclopedias. An annotation is an article that summarizes the evolution of a very

specific legal concept in a concise and precise way. ALR focuses on current topics and

are published chronologically in volumes as legal issues evolve. Researchers should use

the index to see whether the issue you are researching is covered. ALR annotations are

updated by adding recent case law that is relevant to the issue to the case listing, but not

within the annotation itself. The Sixth edition contains the most up-to-date material and

cross-references to the old ALRs as to what articles have been supplemented or

superseded. These annotations are specific and are wonderful sources for researchers.

1. What Constitutes Reverse or Majority Race or National Origin Discrimination

Violative of Federal Constitution or Statutes—Public Employment Cases is an ALR

that addresses some cases that have been used in claims against employers and their

hiring practices. These practices would be the use of background checks to discriminate

about those with criminal background, specifically ones who are a minority. It also

addresses the factors that a non-minority has to prove in order a prima facie case. It

would be good for the researcher to view some of the key cases used in the ALR. This

may lead the researcher to other sources.

Citation: 168 A.L.R. Fed. 1Retrieval Method: Access Westlaw Next and click on secondary sources under the All Content tab. Then click on American Law Report. Type ”disparate impact” in the search terms. Go to Narrow on the left panel and type within search within results bar “pre-employment.”Updates: Document was published in 2001. No update viewable.Research Note: If a document has been superseded, take a look at the document that superseded the original ALR.

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2. What Constitutes "Consumer Report" Within Meaning of Fair Credit Reporting Act

(FCRA) discusses background checks as it applies to the FCRA. It also covers how

employer’s background checks can not only violate EEOC regulations but can violate the

FCRA. It is important to note that when a candidate submits to a background check by

an employer, per the FCRA the employer must issue a copy of the background check.

Additional, it is very important for the employer to send out a copy of the background

check, along with a pre-adverse letter when a candidate has an criminal background that

may affect employment.

Citations: 37 A.L.R. Fed. 2d 203Retrieval Method: Access LexisNexis Advance and type “background checks” in the search bar. Go to secondary materials. Then go to Narrow By and select ALR and search within “private sector.”Updates: Document was updated in 2015.

III. Disparate Impact/Treatment

A. Legal Treatises

Legal Treatises are considered to be a secondary resource. Legal Treatises are

discussions on the law as it pertains to a particular legal subject. They may be of

scholarly nature or they may lean more towards a practitioner to server as a manual or

handbook. Many Legal Treatises are available online. Different treatises serve different

purposes depending on the user. Legal Treatises are frequently cited by expert witnesses

and in court opinions.

1. American Business Law Journal (Am. Bus. L.J.) is a quarterly law review published by

the Academy of Legal Studies in Business. The Journal is peer reviewed. It is available

on both Westlaw and LexisNexis. This particular Am. Bus. L.J. article discusses the

Disparate Impact Discrimination Based on Criminal Convictions. Am. Bus. L.J.

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references additional resources outside of case law. It would be a good idea to review

some of these resources when conducting research.

Citation: Race, Employment, and Crime: The Shifting Landscape of Disparate Impact Discrimination Based on Criminal Convictions, 51 Am. Bus. L.J. 251 (2014).Retrieval Method: Google search “Academy of Legal Studies in Business” and hoover over the ALBS Resources tab and click Publications. Then click the hyperlink http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1744-1714 . Then you can click on the article.Updates: Volumes are updated every quarter (i.e. Summer 2014, Fall 2014, etc.)Other access: Westlaw Next and LexisNexis

2. Labor and Employment Law’s author has been a labor lawyer for over 40 years and has

extensive experience in both private sector and public sector. This legal treatise has

several volumes that are update frequently, with the latest update being February 2015.

Specially, Part II addresses Employment Discrimination. This part goes in-depth on

claims of disparate impact/treatment and the requirement of proof of these claims.

Researchers should take notice that the claim of disparate impact is a Prima Facie Case.

One of the biggest factors to consider in this case is the direct proof discriminatory intent.

Citation: Labor and Employment Law: Part II Employment DiscriminationRetrieval Method: Access LexisNexis Advance and search “Applicant Screening /p "criminal"” then check secondary sources. Go to the second page results to access Labor and Employment Law treatise. After clicking the treatise, go to Part II and start with Chapter 54. Update: There was an update in February 2015.Resource Note: There is a lot of content in this treatise and it would be helpful for the researcher to highlight important facts such as the three (3) elements of disparate impact.

3. WORKING GROUP ON THE FUTURE OF SYSTEMIC DISPARATE TREATMENT

LAW: The Future of Systemic Disparate Treatment Law discusses some of the barriers that

employers have to remove in order to allow advancement of minorities. This Article exposes

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the threat posed to the mainstay of systemic theories (i.e., systemic disparate treatment

theory) under which plaintiffs frequently use statistics and other evidence to establish that

discrimination is widespread within the employers’ organization. Candidates must prove that

high-level decision makers within the defendant organization adopted a policy of

discrimination. The majority believes that systemic disparate treatment theory holds entities

liable for failing to adequately police the wrongdoing of individuals.

Citation: 32 Berkeley J. Emp. & Lab. L. 395Retrieval Method: Access LexisNexis Advance and browse “disparate treatment.” Go to Narrow by and click Practice Areas and Topics. Click on Business Corporate and Compliance then type in “minorities” in Search within results. Updates: Document was updated in 2011. Research Notes: Think about the other ways that plaintiffs can bring claims of disparate impact.

B. Practice Specific Sources:

This resource is typically used for attorney researchers but can also be used for student

researchers. Practice specific sources give a wide variety of secondary sources for practitioners

to use in their practices. Once the researcher types in a particular topic in the search engine(i.e.

Westlaw Next Practitioner Insight or Bloomberg BNA Labor & Employment Law Resource

Center) they will be allowed to review a wide variety of primary and secondary sources.

Specifically, the researcher can review case law, forms, briefs, and trial documents relating to the

topic they are researching.

1. HR Policy Handbook is a practice guide that both in-house counsel and Human Resource

personnel can use in evaluating and developing policies. It gives samples for each state

regarding the issue of pre-employment discrimination. Under Washington state it address

disparate impact having an effect on certain racial or ethnic minority groups and reminds

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employers that arrests alone are not a reliable indication of criminal behavior. It also

advises employers that inquiries regarding convictions or imprisonment can have a

disparate impact on certain racial or ethnic minority groups. But these inquiries are

considered to be justified by business necessity if they are reasonably related to job duties

and the convictions or release from prison occurred within the previous 10 years. This is

a good resource for researchers because it can serve as a checks and balance list when

practicing or seeing if a client’s employer has been in compliance with EEOC

regulations.

Citation: Reference and Background Checks: HR Policy Handbook ; Hiring Retrieval Method: The practice tool can be accessed from the CSL library’s A-Z Index of Databased by clicking Labor and Employment Law Resource Center. After logging into the website, type “disparate impact into the top right corner search bar. Then click Practice tools in the search results which will give you five (5) sources. Then click on Reference and Background checks.Update: No update is available.Research Note: Check the policy that directly reflects your state laws.

2. Employment Discrimination Coordination offers a complete analysis of disparate

impact against those of a minority class. Disparate impact occurs when an employer uses

an employment practice that has a disproportionately adverse effect on protected groups.

For a prima facie case, a plaintiff must offer statistical evidence of a kind and degree

sufficient to show that the practice in question has caused the exclusion of applicants for

jobs or promotions because of their membership in a protected group. This is helpful for

researchers because it applying the facts to the actual elements of the prima facie case of

disparate impact. This is good for practicing attorneys because the cases used in this

resource can help with authorities used in their own situations.

Citation: 3 Emp. Discrim. Coord. Analysis of Federal Law § 136:11

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Retrieval Method: Access Westlaw Next and click on Practice Areas. Then click on employment, then browse “disparate impact” under Practitioner’s Insight. Click on Secondary sources and view the documents. Updates: Database was updated May 2015.

C. Internet Sources:

There is a wide array of Internet sources discussing “Ban the Box” initiatives. As

a researcher, you should insure the information used is from a creditable website. The

Internet sources in this section provide you with information that is outside of case law or

substantive law. They provide information from Ban the Box starter kits to information

on how many states are conforming to banning the box. These sites are a few resources

along with many others that can lend support in your research.

1. Equal Employment Opportunity Commission (EEOC) Enforcement Guide is a

source that is compiled of laws and regulations that employers must follow when they are

established in the U.S. The laws are federal laws that are enforced by the EEOC. The

regulations are those under Title 29 of the Code of Federal Regulations. These regulations are

updated annually and are a creditable source. This Guide provides employers and employees

with information regarding the hiring process. It also provides information about employee and

employer rights. The EEOC itself provides employees with supports in the case they have been

discriminated against. In the case that employers or employees have questions regarding the

employment regulations, the EEOC Enforcement Guide provides question and answer sections.

Citation: The U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov (last visited April 14, 2015).Retrieval Method: Google search using “EEOC Guidance.” Updates: No date provided for the last update.Other access: The site can also be accessed from the CSL library’s A-Z Index of Databased by clicking Labor and Employment Law Resource Center. After logging into

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the website scroll down and you will find EEO Compliance on the left panel under BNA Manuals. After clicking the EEO Compliance link you will be able to click Equal Employment Opportunity Commission, which will give you a hyperlink directly to the website.

IV. Employer Liability for the Acts of Employees

A. Legal Treatises:

Legal Treatises are considered to be a secondary resource. Legal Treatises are

discussions on the law as it pertains to a particular legal subject. They may be of scholarly

nature or they may lean more towards a practitioner to server as a manual or handbook.

Many Legal Treatises are available online. Different treatises serve different purposes

depending on the user. Legal Treatises are frequently cited by expert witnesses and in court

opinions.

1. DON'T WORRY ABOUT THE CHECK - WHY THE FOURTH CIRCUIT'S

OPINION IN BLAIR V. DEFENDER SERVICES, INC. SHOULD NOT DETER NORTH

CAROLINA EMPLOYEES FROM EMBRACING FORTHCOMING "BAN THE BOX"

LEGISLATION focuses on the tort of negligent hiring and the foreseeability of injury to

customers or other employees. This article is pertaining to how Ban the Box effects North

Carolina employers and how banning the box would not affect North Carolina employers

because North Carolina law would not require employers to conduct a criminal background

check in order to protect themselves from negligent-hiring liability if they took other steps to

reasonably investigate their employee's background. This article poses the major question of

whether and to what extent the employer will be held liable where he, she, or it fails to conduct a

criminal background check on an employee, and that employee hurts someone.

Citation: 3 Charlotte L. Rev. 503

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Retrieval Method: Access LexisNexis Advance and type in “negligent hiring” then click secondary sources. Go to the left panel, under Narrow Search and type in “Ban the Box” then hit enter.Updates: Last updated Summer 2012.

B. Practice Specific Sources:

Practice specific sources give practical pointers to researchers from those who have

worked with or litigated the issue discussed. These sources are mostly geared toward attorney

researchers.

1) Causes of Action (COA) 2nd series is a multi-volume collection of thoroughly

written articles by experienced attorneys on specific legal issues. Respectively, each of the

articles contain the elements of a cause of action, possible defenses, procedural issues, remedies,

and other practical issues. There are sample pleading forms and checklists to assist in case and

trial preparation. There are also references to case law, statutes, and other secondary sources.

This article addresses cause of Action for Injury or Death Resulting from Negligent

Hiring, Supervision, or Retention of Employee. It thoroughly covers the prima facie case of

negligent hiring by employers and the defenses that employers can raise. It is included in this

pathfinder because banning the box has the potential to put employers at risk for negligent hiring.

Employers have a duty to protect. That is why reviewing the defenses to negligent hiring is good

information to ensure that even if employer’s move the box they are still doing things to protect

themselves when hiring persons with criminal backgrounds. Employers are encouraged to still

conduct background checks of applicants.

Citation: Cause of Action for Injury or Death Resulting from Negligent Hiring, Supervision, or Retention of EmployeeRetrieval Method: Access Westlaw Next and click the practice area tab. Type “background checks” in the search bar. Once the results populate, scroll down to search

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within and type “ pre-employment” then click secondary sources. Cause of actions in the second source.Updates: Document was updated March 2015.Research Note: You can always download the documents if you can use it in your practice.

C. Internet Sources:

There is a wide array of Internet sources discussing “Ban the Box” initiatives. As

a researcher, you should insure the information used is from a creditable website. The

Internet sources in this section provide you with information that is outside of case law or

substantive law. They provide information from Ban the Box starter kits to information

on how many states are conforming to banning the box. These sites are a few resources

along with many others that can lend support in your research.

1. Equal Employment Opportunity Commission (EEOC) Enforcement Guide is a source

that is compiled of laws and regulations that employers must follow when they are

established in the U.S. The laws are federal laws that are enforced by the EEOC. The

regulations are those under Title 29 of the Code of Federal Regulations. These

regulations are updated annually and are a creditable source. This Guide provides

employers and employees with information regarding the hiring process. It also provides

information about employee and employer rights. The EEOC itself provides employees

with supports in the case they have been discriminated against. In the case that

employers or employees have questions regarding the employment regulations, the

EEOC Enforcement Guide provides question and answer sections.

Citation: The U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov (last visited April 14, 2015).Retrieval Method: Google search using “EEOC Guidance.” Updates: No date provided for the last update.

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Other access: The site can also be accessed from the CSL library’s A-Z Index of Databased by clicking Labor and Employment Law Resource Center. After logging into the website scroll down and you will find EEO Compliance on the left panel under BNA Manuals. After clicking the EEO Compliance link you will be able to click Equal Employment Opportunity Commission, which will give you a hyperlink directly to the website.

D. Note About Sources:

I have divided my sources under several headings of Employment Law: Banning the Box.

Many of the sources provided information on all subjects, working interchangeably. I advise

researchers interested in learning more about Ban the Box issues or interested in representing

Discrimination clients explore these sources beyond the scope of this pathfinder to gain a greater

understanding of the need for persons with criminal background’s equal rights and protections.

PATHFINDER REPORT

Beginning this pathfinder was an interesting for me. I have always found it important to

know the background of things I am interested in. Finding the correct sources to use find the

background of the particular subject is very important. Many practitioners, students, and

advocates do not know all the answers to the issues that arise in the areas of Employment Law,

especially with new laws concerning Ban the Box. Therefore, research is needed to find the

answers and to use those answers for clients. This pathfinder will assist anyone interested in Ban

the Box and what both employers and employees are faced with.

I had knowledge of these subjects prior to this project. Through my internship and work

with the civil rights clinic, I had the opportunity to see the effects of ban the box on both

employees and employers. During the Clinic, we pushed for Infilaw to change their policies to

move the box instead of banning the box from its initial application. We were not asking them to

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not conduct background checks but simply to ensure the candidate with the adverse background

was qualified for the position. Additionally, we were asking them to ensure that the applied for

position was not related to the charges the person received. Infilaw had these practices in place

but did not have these practices in writing. Infilaw’s issue with the changes in our proposal was

the cost of changing policies and the potential employer liability. It was obvious from the follow

up questions that they were still shaky about changing its policies.

From personal family experiences, I have seen how hard it is for someone with a criminal

background to receive a job. Most of the time, the box in itself is a deterrent to applying. They

feel if they disclose that they have a criminal background they will not get a job. But if they fail

to disclose they will not get it job because the employer sees them as being untruthful. It really

is a catch 22. Working for Coca-Cola I felt really conflicted when having to send out pre-

adverse and adverse letters out to persons who had criminal backgrounds because of my personal

family experience.

Attending law school enabled me to understand the full aspect of what the employer is

facing. An employer has the duty to protect their business, customers, and other employees.

They do not want one bad hire to place them at liability which is understandable. I feel as if this

can be tunnel view because those persons who cannot find jobs will go back out into the

communities and do what they did to be incarcerated in the first place or worst. I understand the

pressures they face in wanting to provide for their families but not having the means to do so

because they cannot receive a job.

Seeing this inequality based on personal bias gave me a personal experience that enabled

me to understand the importance of not only research, but also the importance of using that

research to think outside the law as it currently exist. I tried to choose resources that would give

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the researcher solid information on the background or grass root issues, and uniqueness of Ban

the Box. Additionally, I wanted to show a broader perspective of other areas of how background

checks, disparate impact, and negligent hiring affects both parties.

This has been difficult given the lack of resources on some of these specific issues.

There were little primary sources of law dealing specifically with disparate impact issues

involving criminal background checks affecting minority members. States are divided in their

treatment of Ban the Box in large part because of their varying rules and regulations imposed by

both state and federal legislation. In cities such as San Diego, CA Ban the box laws are very

strict in what the employer can ask applicants and when can they ask them certain things about

their background. I included some laws may go well beyond the scope this pathfinder, but they

will help the researcher better understand the foundation of Ban the Box. Most of the secondary

sources I have chosen reference case law which provide analysis of the various state laws as

applied to these issues. I chose to use sources that are not state specific because every state

varies in its laws.

I began research by developing a research log on how I would proceed. I knew that Ban

the Box issues are evolving at a much faster rate than the law. I limited most resources to those

published in the last five years. Because the issue of Ban the Box is based on persons with

criminal backgrounds obtaining employment without discrimination issues, I used a lot of recent

law reviews and journals. I then logged a list of sources and keywords that I felt were the best to

start my research.

At the top of that list was Internet Source. I knew starting with the EEOC website would

give me some of the basic knowledge on the regulations on background checks, disparate impact,

and negligent. This website covers all those topics on various levels. The EEOC website gives

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researcher the basic fundamentals of claims of discrimination and defenses to discrimination

based on those factors. I read through and referenced the cases then considered including them,

but only made research notes for the researcher to review them. I thought it was best that I did

not include them.

I then looked over some Legal Treatises because it is a scholarly legal publication

containing all the law relating to a particular area, such as Employment and Labor Law. I

figured the use of this source would be good because a lot of experts rely up on Legal Treatises.

Specially, the Labor and Employment treatise was very helpful because it covered 2 out of the 3

topics that I used in this pathfinder. It is really helpful in helping to understand the requirements

to establish the prima facie case of disparate impact.

I also looked at the A.L.R. annotations, but they were kind of dated. One was 26 years

ago which was outside of the time frame that Ban the Box began. This annotation had been

updated to reflect some of the new laws concerning minorities and not just women. I included

this annotation in the pathfinder. I decided that secondary sources like this one provide great

exposure of case law and would better serve the researcher. I researched additional A.L.R.

annotations, and found others were updated to reflect current opinions and case law. I did

include these annotations. Although limited in physical resources, I believed I provided a sound

amount of information from other sources.

Next I decided to take a look on Charlotte School of Law’s (CSL) catalog, I discovered

the library had several electronic sources dealing with Labor and Employment issues. I chose to

utilize the A-Z database. Since I wanted the most recent information, I used the dates within my

5 year period. The BNA Labor and Employment Resource provided me with recent practice

materials being used by employers. This a great source on all Labor and Employment topics. It

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is a wonderful source for any attorney representing either employers or applicants/employee

clients.

I chose not to use books found during my search Ban the Box issue because I did not

believe they would have the updated information I needed. I also searched directly using Lexis

Nexis and Westlaw Next finding great sources. Both websites had practice materials, ALRs, and

plenty of law reviews. It seemed that a lot of the materials were for attorneys representing the

employer. I some knowledge of Causes of Action 2d and thought it may be a useful tool for a

new Employment and Labor attorney.

I used Westlaw Next and LexisNexis a lot because some of these resources can be found

for free and I know a lot of people may not have the time to stop by a library. Since a lot of the

regulations surrounding Ban the Box are in relation to EEOC regulations a person can use their

website as a primary source. There are websites that focus on Ban the Box specifically that are

free resources. I did point out if the sources cited were also available through other databases.

Putting this pathfinder together was time consuming, but broadened my knowledge. I

learned more about research and the underlying Ban the Box issues that are not generally

criticized. I learned that for employers it is simply not a matter of hiring someone with a

criminal background, it is protecting themselves from liability. I learned that for applicants and

employees that is simply not a matter of just getting a job it is providing for their families and

not having someone label you for past mistakes. These issues are very complicated and require

an open minded approach to both the research and application of the law to them.

This pathfinder has confirmed my belief that no one can ever have enough knowledge

about a topic they are interested in. Research promotes discovery of the unknown and

knowledge to become better attorneys and students. I believe researchers will find the resources

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included in this pathfinder very enlightening.

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