Labor & Employment Law Daily No background check law violation in rescinding job offer after online search revealed applicant’s conviction
Wednesday, February 12, 2020

No background check law violation in rescinding job offer after online search revealed applicant’s conviction

By Marjorie Johnson, J.D.

The state law did not shield the applicant’s prior conviction from the employer’s hiring determination since the company learned about it though a Bing web search and not though “criminal history record information.”

A job applicant failed to plausibly allege that an employer violated Pennsylvania’s Criminal History Record Information Act (CHRIA) by rescinding a job offer because it discovered from a Bing web search that he had a misdemeanor conviction. The state law only prohibited employers from misusing “criminal history record information,” which is described as information “collected by criminal justice agencies,” and there was no allegation the employer did so here. A federal court in Pennsylvania also dismissed as untimely the applicant’s Title VII, ADEA, and ADA claims asserting the employer unlawfully acted upon information it learned on the web relating to his age, disabilities, and prior employment discrimination lawsuits (Azadpour v. AMCS Group, Inc., February 5, 2020, Schiller, J.).

Offer of employment. In late January 2018, the applicant engaged in a remote job interview process with the employer that involved phone calls, emails, and a video conference with various personnel. The process culminated in a job offer and he signed an agreement to become a vehicle technology consultant on May 1. However, the employer subsequently conducted an online search using his name that purportedly revealed certain information that led it to rescind the offer.

On-line search. The applicant claimed that the online search disclosed a lawsuit he had filed against a prior employer alleging failure to engage in the interactive process to accommodate his “mental disability (depression) and physical disability (foot operation)” and that he was laid off because he was “close to the age of 40.” He also claimed that the employer discovered another lawsuit he filed accusing an employer of sex and national origin discrimination. Finally, he claimed that the search revealed that he was convicted of a misdemeanor in Texas.

Offer rescinded. On May 5, his would-be supervisor sent him an email stating that “after our background check that is part of our process was completed I was informed I cannot follow through or proceed with the offer. This was a surprise and very disappointing.” A letter from the supervisor on company letterhead was attached, which stated that “after further consideration” the company was “rescinding its offer of employment to you and/or terminating any such employment effective immediately.”

The applicant emailed back that same day and asked for a copy of the background check. The head of HR responded, instructing the applicant that “[a]s you know we didn’t actually do a background check – it was a google search that revealed the items of concern.” The supervisor later sent an email stating that he had “mistakenly referenced a formal ‘background check.’” The applicant subsequently brought this action alleging a myriad of claims.

“Criminal history record information.” The CHRIA prohibits an employer that is “in receipt of” an applicant’s “criminal history record information file” from considering felony and misdemeanor convictions unless they relate to suitability for a particular position sought. “Criminal history record information” is described as information “collected by criminal justice agencies” and excludes information that is collected by “noncriminal justice agencies.” Therefore, an employer cannot violate the CHRIA if it learns of an applicant’s past criminal history through means other than “criminal history record information.”

Here, the applicant contended that, as a result of a Bing search of his name, the employer learned that he was convicted of a misdemeanor in Texas and impermissibly incorporated that information into its employment decision. However, he did not allege that the employer learned of his criminal history from “information collected by criminal justice agencies” or that the information contained “identifiable descriptions, dates and notations of arrests, indictments, information or other formal criminal charges.”

While he asserted that a “simple putting of my name in a publicly available Internet search engine such as Google, Bing, or Celosia, would reveal my criminal history, as a matter of public record,” he didn’t state anything about the source of the information. This was fatal since the CHRIA does not “shield an applicant’s prior misconduct from an employer’s hiring determination when the employer learns about the misconduct through a means other than the applicant’s criminal record information file.”

Discrimination claims untimely. The applicant also failed to advance his Title VII, ADEA, and ADA claims since they were filed outside of the 300-day limitations period—499 days after he learned of the rescinded offer—and thus were untimely. The court rejected his contention equitable tolling was warranted because he had no means of learning that the employer conducted a web search of his name that disclosed his previous lawsuits and misdemeanor conviction until discovery had begun in this action. His argument was problematic since his alleged reason for missing the 300-day filing window—that he did not know the reason for his employer’s action and the employer did not share it with him voluntarily within the span of the statute of limitation—was “wholly un-extraordinary.”

“Virtually every plaintiff arguing that their Title VII rights were violated as a result of their termination or failure to be hired will find themselves outside the company walls without any way to probe the legality its employer’s decision-making process.” While the limitations period may prevent some of those plaintiffs from bringing potentially meritorious claims, “this was the balance Congress struck between the interests of employment discrimination plaintiffs in pressing their claims and the interests of prospective defendants and the legal system in prompt resolution of such claims.”

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