On Oct. 6, 2022, President Joe Biden issued a blanket pardon to all citizens and lawful permanent residents convicted of simple possession of marijuana under the federal Controlled Substances Act. The move reflects a shift in attitudes towards low-level drug offenses, and should serve as an impetus to employers to review their policies on criminal record checks.
Because marijuana possession offenses predominantly fall under the jurisdictions of the states, not the federal government, the immediate impact of these pardons is limited. Only about 6,500 people have been convicted for simple possession under federal law and a few thousand more have been convicted under the Code of the District of Columbia.
However, Biden has urged governors to follow suit, and some states have begun to explore the idea of pardoning nonviolent marijuana crimes.
The most dramatic action has taken place in Oregon, where, in November 2022, Gov. Kate Brown pardoned an estimated 45,000 people with convictions for simple possession of marijuana, and forgave more than $14 million in unpaid fines and fees.
In a less grandiose, but nonetheless noteworthy program, which actually preceded the presidential pardon, Pennsylvania Gov. Tom Wolf announced a one-time, 30-day limited program called the Pennsylvania Pardon Project, which allowed individuals convicted of certain misdemeanor marijuana offenses to apply for accelerated clemency.
Although the program was limited — only about 3,500 applications were received between Sept. 1 and Sept. 30, 2022 — it demonstrates a new appetite for offering people with marijuana convictions a chance to clean up their records.
The use of criminal background checks is ubiquitous across industries and positions, and job applications that involve pardoned criminal convictions can present a number of issues. A pardon, unlike an expungement — a process by which criminal convictions are essentially erased from records — may not remove a charge or conviction from all background checks depending on the state and the background check provider.
For example, convictions under federal law will remain on a criminal record with a notation that the offense has been pardoned. As such, it is important for employers to understand to what extent, if any, they can consider the results of criminal background checks in their hiring decisions.
Most states directly regulate the use of criminal records in the hiring process in some manner. Many states limit how far back an employer can look, and prohibit employers from considering arrests that did not result in convictions.
It is also common for states to mandate that convictions can only be considered to the extent they bear on the position in question. Some states require employers to give notice to any applicant who is rejected due to his or her criminal record and an opportunity to attempt to correct an allegedly inaccurate record.
Importantly, many states limit an employer's ability to make decisions or even inquire about offenses that have been sealed, expunged or pardoned, even if they appear on a third-party background check.
In fact, most states that allow for the sealing or expungement of records explicitly permit applicants to deny the existence of records even when directly asked, subject to a few limited exceptions.
Accordingly, if an applicant had their marijuana conviction expunged, it would most likely be unlawful for an employer to consider the conviction in its hiring process. Even where the law allows an employer to ask about expunged records, it is generally best practice to avoid doing so.
In addition, over a dozen states have passed ban-the-box laws that limit how and when an employer may inquire about criminal convictions.
States with ban-the-box type laws include California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington, as well as Washington, D.C.
Cities and municipalities have also passed ban-the-box ordinances, including New York City, Austin and Philadelphia, among others. These laws generally do not establish complete bans on considering criminal convictions, but rather aim to minimize the role criminal records play in the initial screening process.
Thus, many of these laws only allow an employer to ask about or consider convictions once an initial interview has been conducted or after a conditional offer of employment has been extended.
Even those employers who fully comply with state and local statutes could still incur liability under federal and state anti-discrimination laws if they are not careful in how they use criminal background checks.
Although there is no federal law that directly regulates the use of these checks in the hiring process, the U.S. Equal Employment Opportunity Commission has advised that considering arrests and convictions can run afoul Title VII of the Civil Rights Act if the employer's policies effectively discriminate against members of a protected class.[1]
Here, the greatest concern relates to claims of discriminatory impact, which is when a facially neutral policy disproportionately affects certain classes of applicants.
According to the EEOC, members of certain racial minority groups are arrested and incarcerated at rates disproportionate to their numbers in the general population.[2]
Black and Latinx people are more likely than white people to be arrested, convicted or sentenced for drug offenses even though their rate of drug use is similar.[3] Thus, the EEOC has warned that a blanket policy of excluding applicants with criminal records could violate Title VII.
Violations of Title VII can be very costly, as the statute allows for recovery of front and back pay, compensatory and punitive damages, and attorney fees and costs. Successful plaintiffs may also be awarded nonmonetary damages, such as placement in the job or reinstatement.
Although the possibility of a disparate impact claim is a real threat, employers can still use criminal records searches. They must ensure, however, that inquiries about past offenses are reasonably related to the job in question.
For example, an employer who is hiring bank tellers may be justified in excluding applicants with recent convictions for embezzlement. However, it is less obvious that an employer who is hiring retail workers would have a legitimate reason for excluding applicants with years-old minor drug convictions.
Further, any employer would be hard-pressed to justify a policy that excluded applicants whose convictions have been pardoned or expunged absent compelling circumstances.
Therefore, employers would be well advised to avoid making decisions based on offenses covered by the recent marijuana pardons, or even asking applicants about such offenses.
Even where the law allows for the consideration of minor drug offenses, employers should consider using this moment as an opportunity to consider whether established policies concerning such offenses are still consistent with business necessity and evolving social norms.
References
[1] https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions.
[2] Id.
[3] https://www.aclu.org/report/tale-two-countries-racially-targeted-arrests-era-marijuana-reform.
Reprinted with permission of Law360.
