Prior Use of Fake SSN Didn’t Disqualify Applicant 16:23, July 19, 2016

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Prior Use of Fake SSN Didn’t Disqualify Applicant

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A court in California awarded a man over $1.4 million in attorney fees and costs after it found that he was denied a job because he had previously used an invalid Social Security number (SSN).

Victor Guerrero was born in Mexico and brought to the United States by his parents in 1990, when he was 11. As a 15-year-old In 1995, at the urging of his parents, Guerrero began using a made-up SSN in order to work. Although Guerrero received an Individual Taxpayer Identification Number (ITIN) in 1997, and the SSN he made up was assigned to someone else in 2004, Guerrero continued to use that SSN until 2007, when he became a permanent resident and got a valid number.

After becoming a citizen in 2011, Guerrero applied to become a corrections officer at the California Department of Corrections and Rehabilitation (CDCR). The CDCR placed Guerrero on its eligibility list after he passed its physical and written examinations. As the next step, Guerrero filled out the CDCR’s background investigation questionnaire. Question 75 asked: “Have you ever had or used a social security number other than the one you used on this questionnaire?” Guerrero answered “Yes” and wrote an explanation.

The CDCR removed Guerrero from its eligibility list due to his previous use of an invalid SSN. This happened again when he reapplied in 2013.

Consideration of Criminal Records in Employment Decisions

In its guidelines on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) states that “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity.”

According to the EEOC, an employer should consider at least the nature of the crime, the time elapsed since the crime, and the nature of the job. If an employer does that, its policy will be less likely to violate Title VII because it will provide an opportunity for an individualized assessment for people with criminal records, to determine if the policy as applied is job related and consistent with business necessity.

The CDCR Violated Title VII

The Court first noted that California law requires the CDCR to conduct thorough background investigations to determine whether job applicants have good character.

The Court then considered the efforts that Guerrero had made to cure the harm created by his use of an invalid SSN. As soon as he learned of his true immigration status, Guerrero applied to adjust his status. But his application sat pending for over 10 years, due to backlogs. He also obtained a legitimate ITIN and paid taxes with his ITN until he obtained a valid SSN. He then promptly retroactively amended his taxes from 2004 and 2005 to attribute his income to his new SSN, and he informed his employer of his new SSN. The Court found that these “efforts to cure the harm created by his use of an invalid SSN are commendable and should have been taken into account in CDCR’s assessment.”

Addressing the CDCR’s claim that Guerrero had committed identity theft by using a false SSN after he had received an ITIN, the Court found that Guerrero did not commit identity theft because he never used anyone else’s name, address, or credit card.

The Court then determined that the CDCR had a legitimate business interest in determining whether an applicant had the required character traits, and that Question 75 could serve this purpose. It also found that the CDCR didn’t automatically deny applicants based on their answer to Question 75, because it asked for supplemental explanations. Therefore, the CDCR’s process allowed for individual assessments of each applicant.

However, the Court found that the CDCR did not perform such an assessment. Although Question 75 had a disparate impact on Latinos, the CDCR did not consider the three factors that the EEOC requires employers to assess: the nature and gravity of the offense, the time passed since the offense, and the nature of the job sought.

The CDCR argued that it did perform such an assessment, but the Court disagreed. In fact, the letter that the CDCR sent to Guerrero in 2013 was identical to the one it sent to him in 2011; it even contained the same typos and grammatical errors.

The CDCR’s failure to do this amounted to an arbitrary barrier to employment in violation of Title VII.

Reinstatement for the Job Applicant

In September 2015 the Court ordered that Guerrero be reinstated to the background check stage of the application process and that the CDCR stop investigating the issue of his invalid SSN. The Court also awarded Guerrero back pay as if he had started work on January 1, 2013, on the condition that he passed the background check and completed the 16-week training.

Attorney Fees and Costs

In June 2016 the Court awarded the attorney fees and costs. Payment was stayed until all appeals are exhausted. [Guerrero v. California Dept. Of Corrections and Rehabilitation; State Personnel Board (USDC NDCA 2016) no. C 13-05671]

Best Practices

The American Bar Association says that employers cannot address the issue of criminal history in a vacuum. “Employers need to balance any policy with safeguarding employees, customers and/or third parties entering their premises, aside from safeguarding their property, and cannot ignore the potential of negligent hiring claims. Adding to the maze is a hodgepodge of state laws, some of which bar employers from hiring individuals with criminal history records.”

Business Insider notes that some managers think that hiring formerly incarcerated employees can add value to their businesses. Such employees can be very loyal, they may have received training in prison that’s transferable to the job, they are highly motivated to remain with the business, and there may be tax incentives for hiring such people.

The EEOC guidance lists the following Employer Best Practices for employers who are considering criminal record information:

    (*)    General: Employers should eliminate policies or practices that exclude people from employment based on any criminal record; and train managers, hiring officials, and decision makers about Title VII

    (*)    Developing a Policy: Employers should develop a narrowly tailored written policy and procedure that identifies essential job requirements, determines the specific offenses that may demonstrate unfitness, determine the duration of exclusions for criminal conduct, record the justification for the policy and procedure, and keep records of consultations and research used in creating the policy and procedure.

    (*)    Questions about Criminal Records: When asking questions, employers should limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

    (*)    Confidentiality: Employers should keep information about applicants’ and employees’ criminal records confidential, and they should use it only for the purpose for which it was intended.

LawRoom offers online training that helps employers navigate issues like background checks for hiring, sexual harassment, ethics, FCPA, and data security. To learn more, visit us here: LawRoom.com.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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