Columbia, South Carolina passed an ordinance effective August 6, 2019,¹ limiting employers' use of criminal background checks and banning employers from inquiring about salary history on job applications. South Carolina's capital city is the latest locality to pass such a measure, following several others that passed similar ordinances within the past year.²

The new "Conviction and Wage History Prohibition in City Employment and by City Contractors and City Vendors" provision of the city code places exhaustive limitations on private employers considering conviction history in employment decisions, and also prohibits employers from including questions about applicants' wage histories on job applications. The ordinance contains additional prohibitions on employees of the City of Columbia inapplicable to private employers.

Criminal History Record Restrictions and Requirements

The conviction history measure places requirements on employers at almost every step of the background check process, including from the moment that an employer decides that a "background check" (which is not specifically defined in the ordinance) should be conducted. The ordinance prohibits employers from conducting "background checks" on applicants unless they have made a "good faith determination" that the position at issue "is of such sensitivity that a background check is warranted" or if a background check is required by law. Once an employer decides that a given position will require a background check, the ordinance then requires that job announcements and position descriptions provide the following statement: "This position is subject to a background check for any convictions directly related to its duties and responsibilities. Only job-related convictions will be considered and will not automatically disqualify the candidate." The ordinance further prohibits job applications from containing questions about an applicant's conviction history.

The ordinance prohibits any employer from conducting a "conviction history check" until after the applicant has received a written conditional offer letter, a document notifying the applicant of rights under the ordinance, and a request for authorization to conduct a background check. The ordinance further states that employers cannot use or access records of arrest not followed by a "valid" conviction; misdemeanor convictions where no jail sentence can be imposed; sealed, dismissed, or expunged convictions; and infractions.

In assessing an applicant's conviction history, employers can only consider job-related convictions (unless a statute explicitly requires that certain convictions are automatic bars to employment) and cannot disqualify an applicant based even in part on convictions that are not job-related. If an employer determines that a conviction is job-related, the ordinance further requires the employer to consider the following:

1. Whether the conviction is directly related to the duties and responsibilities of that employment position;
2. Whether the position offers the opportunity for the same or a similar offense to occur;
3. Whether circumstances leading to the conduct for which the person was convicted will recur in the position; and
4. The length of time since the offense occurred.

The ordinance may place additional requirements on employers for sending out pre-adverse action notices already required by the Fair Credit Reporting Act (FCRA). If an employer may disqualify an applicant based, even in part, on an applicant's conviction history, the ordinance requires employers to send out the pre-adverse action notice that should also identify the conviction(s) that are the basis for the potential adverse action and to provide examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide (examples of which are included in the ordinance).

After the employer issues the aforementioned notice, the applicant has 10 business days in which to provide information challenging the accuracy of the information, evidence of mitigation or rehabilitation, or anything else that may rebut the basis for the adverse action. The ordinance requires employers to hold the position open until they make the final employment decision. Once 10 business days have passed, the employer must conduct an individualized assessment to consider the applicant's evidence of rehabilitation or mitigation and the applicant's fitness to perform the duties of the position sought, as well as the factors the EEOC recommended in its 2012 Enforcement Guidance 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 applicant employment, the employer must provide final notice of that decision. The ordinance requires that notice to include a statement that the applicant 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 ordinance requires employers to retain application forms, records of employment, and similar records for at least three years. It even requires employers to maintain a record of the number of positions requiring background checks and, for those positions, records of the number of applicants. An employer must also maintain records on the number of applicants who (a) were provided a conditional offer; (b) were provided a pre-adverse action notice; (c) provided evidence of mitigation or rehabilitation; (d) were provided a final adverse notice; and (e) were hired.

Salary History Requirements

The ordinance's requirements as to salary history information are more limited than the criminal history protections. The ordinance essentially excludes private employers from inquiring about an applicant's wage history on the job application. The ordinance's other salary history measures apply only to employees of the City of Columbia.

Next Steps

At a minimum, employers that hire in Columbia, South Carolina should consider:

• Conducting a privileged review of their background check procedures for compliance with the ordinance, including to determine which positions meet the ordinance's criteria for requiring background checks;
• Reviewing job postings and descriptions to ensure that the appropriate language about background checks is included;
• Removing inquiries about criminal history and wage history from the employment application;
• Assessing their review process for determining whether applicants' conviction histories are job-related as required under the ordinance; and
• Reviewing, if they are multistate employers, the application process for compliance with ban-the-box legislation applicable to each jurisdiction in which they hire.

Posted: October 15, 2019

¹Columbia, SC, Ordinance 2019-022 (2019), located here: https://www.columbiasc.net/depts/city-council/Ordinance_2019_022_Conviction_and_Wage_History_Prohibition.pdf.

²Chad Kaldor, Cincinnati Bans Salary History Inquiries, Littler ASAP (Mar. 15, 2019); John Bauer and Kelly Spina, Suffolk County Set to Become the Fourth New York Jurisdiction to Ban Salary History Inquiries, Littler ASAP (Dec. 10, 2018).

³The EEOC's Enforcement Guidance was itself subject to a recent important decision by the Fifth Circuit, discussed here: Rod Fliegel and Molly Shah, Fifth Circuit Deals a Blow to EEOC's Criminal Record Guidance, Littler ASAP (Aug. 6, 2019).