The rideshare giant Uber has made news headlines again for its hiring policies. This time, however, it is not because some employee or driver is concerned over their treatment. The most recent complaint lodged against the company is that the criminal background check performed during the hiring process for drivers is allegedly not stringent enough to bar individuals who have been convicted of felonies. The company’s response has so far been in the form of a question: ‘Why should it be?’
Uber Defends its Seven Year Limit
While the headlines use colorful words such as “sex offender” and “murderer” to describe some Uber drivers, the company’s statement in support of its hiring policies is surprising to many. In its statement against using Livescan, a program used by taxi companies that is fingerprint-based, the company agreed that customer safety is a priority. However, it also said that this alternative has led to potential employees being turned away due to an arrest record that never led to a charge or conviction, which can have a disparate impact on minority applicants.
Some may say that Uber is taking a fairly bold (and wrong) stance by standing up for “murderers” or “sex offenders.” The company sees it differently, according to previous statements defending its policy of a seven-year limit for the pre-employment criminal history check. As Uber has stated previously, the seven-year review “strikes the right balance between protecting the public while also giving ex-offenders the chance to work and rehabilitate themselves.”
Standard Employment Practices
Much of the law governing how deep an employer may dig into a prospective employee’s criminal history depends on state statutes. In California, applicants are provided protections that employers in other states are not bound by. Specifically, California employers are not allowed to ask prospective employees about prior arrests that did not result in convictions. This prohibition extends to any diversion programs that the applicant may have been referred to in lieu of a conviction. Employers cannot ask about any convictions that have been sealed, expunged, or absolved by statute. While an employer may ask an applicant about some arrests – i.e. those for which the person is currently pending trial – it should use caution so as to avoid overstepping any legal boundaries.
Whether a company decides to take an approach similar to that of Uber, or a more conservative approach, is ultimately up to its leaders. They should keep in mind, however, that the motivations behind such a decision can be just as important as the ultimate policy that is drafted, as they may come into play if the company is ever sued for alleged labor law or anti-discrimination law violations.
If you are a business leader and have questions about your company’s employment policies, we can help. The attorneys at Garcia & Gurney have years of experience guiding employers in California to ensure that they are in compliance with state and federal laws, while still creating policies that are tailored to the unique needs of the business.