Uber has come. And many rejoice. Ride-hailing, in this the Age of the Internet of Things, has finally arrived in Birmingham. Birmingham was the last big city east of the Mississippi to embrace Uber. Now, says Uber, “Residents of Birmingham have expanded access to safe, reliable transportation options and the economic opportunities that Uber brings to the community.” But Uber’s hiring practices and background checks are clouded in uncertainty revealing deeper social, employment and political issues at play in our society.
Taxicab companies are regulated for a reason – to protect the public. To ensure a fair charge for the fare. To provide for safe transportation. To prevent undue congestion and burden on the transportation infrastructure. The rise of ride-sharing businesses – which provide a similar service for a fee – has generated controversy. Is the public adequately protected?
A perusal of news articles raises concerns regarding Uber’s hiring practices. This last week a woman in Cincinnati reported to the police that an Uber driver sexually assaulted her at her home. Earlier this month, an Uber passenger filed suit in Los Angeles against Uber claiming a driver sexually assaulted him. In Athens, Georgia, the police arrested an Uber driver accused of breaking into the home of a female passenger and sexually assaulting her. Chicago prosecutors have charged an Uber driver with sexually assaulting an intoxicated passenger who fell asleep in his car.
Whether the ride-sharing companies are performing proper background checks to weed out dangerous convicts is a matter of debate. On the one hand, district attorneys in San Francisco and Los Angeles have sued Uber claiming that “systemic failures” in its background check process enabled registered sex offenders, identity thieves, and convicted murderers to go to work for it. On the other hand, rejected Uber drivers have filed no fewer than four class actions against the company, claiming that Uber violated background check laws when denying them employment. Apparently, some claim Uber’s hiring practices are too stringent and others claim it is not stringent enough.
A related tension plays out between those who contend that barriers to re-entry into the workforce for convicts should be lowered and those who desire employers to engage in robust background checks to prevent harm to co-workers or the general public. A number of cities and states have enacted so-called “Ban the Box” laws, which prohibit employers from inquiring about the criminal history of, or running background checks on, applicants for employment until they have been given an offer of employment. New York City, for example, recently passed the Fair Chance Act, banning the box. In a related vein, Uber recently announced that it will lower its screening standards for certain drivers, allowing those convicted of theft or check fraud to serve as Uber drivers.
In contrast to this effort to inhibit the ability of employers to run background checks, cities like Birmingham and states like Florida are passing laws that compel ride-sharing services to perform background checks on all applicant drivers. The City of Birmingham’s Transportation Ordinance mandates that all drivers undergo a local and national criminal background check, including the use of “a Multi-State/Multi-Jurisdiction Criminal Records Locator,” along with primary source validation and a national sex offender check. This is a step in the right direction, particularly if the ride-sharing service uses a nationally accredited consumer reporting agency to conduct the background check. These consumer reporting agencies have in place extensive networks of public record researchers, immediate access to state, federal and private databases, and utilize experienced criminal record researchers to ferret out convictions.
Just one week ago, a bill requiring ride-sharing services to perform comprehensive background checks of potential drivers advanced through the Florida House Economic Affairs Committee. If this bill is eventually enacted into law, it will apply to all ride-sharing drivers in the entire State of Florida. In its present form, the bill would prevent a person from serving as a driver if, within the last seven years, he has been convicted of a DUI, fraud, sexual offenses, theft, or acts of violence, among other offenses.
As the litigation against Uber underscores, in this age of Big Data, when an employer can easily obtain a thorough and yet relatively inexpensive background report on an individual, the general public has grown to expect that employers will conduct due diligence of those they hire. Notwithstanding Ban the Box laws and other measures taken to reduce barriers to re-entry, employers are still expected to run extensive background checks under the theory that they will be held responsible for negligently hiring and employing criminal convicts. A balance will need to be struck. Now is the time for business owners and employers to speak up, to demand that they are permitted to run extensive background checks at any time before or during employment and that the policy of re-integrating convicts ought not to trump the right of employers to protect their employees and the general public.
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