Tag: Emsellem

The pros and cons of fingerprinting Uber drivers

The following piece by Maurice Emsellem of the National Employment Law Project was originally published on the Huffington Post.

 

Uber’s ruthless expansion strategy has put state and local legislators in the middle of the debate over regulation of the on-demand, ride-hailing workforce. Laws requiring background checks for drivers, which can restrict access to Uber’s core asset, are now a central theme of the regulatory battle, focusing specifically on the use of state and federal criminal history databases that require fingerprinting of ride-hailing drivers.

Indeed, Uber and Lyft recently chose to abandon the Austin, Texas market rather than comply with local laws requiring taxi drivers to undergo fingerprint-based background checks (56 percent of Austin voters rejected an initiative to exempt on-demand companies from the city’s law). And in New Jersey and Chicago, where similar measures are now being actively debated, Uber retained former U.S. Attorney General Eric Holder to lobby against the bills by challenging the accuracy and fairness of fingerprint-based FBI background checks (which is an issue that NELP has championed as an advocate of bi-partisan federal reform legislation).

To help inform the debate, it’s important to first clarify that “fingerprinting” is a shorthand term referring to background checks that require an individual’s fingerprint (usually captured by means of “livescan” technology) to access either a state criminal history repository or the FBI database, which collects data from the state and local systems. In contrast to name-based checks conducted by commercial background check companies, fingerprint-based checks are less vulnerable to misidentification. In addition, private employers typically cannot access the databases requiring fingerprinting of the workers unless authorized by a federal, state, or local occupational licensing law, like the ride-hailing laws regulating taxi drivers. Instead, with varying degrees of accuracy, the commercial background check companies collect criminal history data from the local courts, the states, and “aggregators” of criminal history data.

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Federal agencies urged to adopt fair hiring policies

PresSealThe National Employment Law Project (NELP) has published a white paper urging the federal government to increase its own employment of people with a criminal record.  In “Advancing a Federal Fair Chance Hiring Agenda,” Maurice Emsellem and Michelle Natividad Rodriguez make a strong case for a federal “fair chance” hiring initiative similar to the ones put in place by state and municipal governments across the country.  Specifically, background check policies and suitability standards should be reformed by presidential order to give people with criminal records an opportunity to compete for jobs with federal agencies and federal contractors from which they are now, as a practical matter, excluded.

The NELP paper points out that the federal workforce is far more decentralized than a standard civil service structure, with fewer mandated protections regulating the hiring process.  Notwithstanding OPM guidelines, federal agencies have broad discretion to adopt their own hiring policies and practices, often with limited accountability and transparency. Indeed, the EEOC has been critical of the fact that federal agencies are not bound by the same suitability standards that apply to most other public and private employers.  Moreover, federal contractor employees (an astonishing 22 percent of the U.S. workforce) enjoy few legal protections, and applicants may be rejected (or employees dismissed) on the basis of stringent FBI background check requirements that apply, inter alia, to anyone with routine access to federal facilities.  These shortcomings could be addressed with the stroke of a presidential pen (or two strokes to be precise).

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