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.
The arguments for and against fingerprinting break down roughly as follows. State and local lawmakers advocating for fingerprint background checks of on-demand drivers are concerned for the safety and security of consumers, which they argue is better protected by accessing the national FBI database, while also pointing out that on-demand drivers should be subject to the same background check regime as all other ride-hailing drivers. Uber, in contrast, has argued that the FBI database, in particular, contains incomplete information (mostly state arrests that have not be updated to reflect the disposition of the case), which discriminates against people of color who are more often arrested for crimes that never lead to a conviction.
As an advocate for the employment rights of people with records and on-demand workers, NELP has concerns with both approaches. Most importantly, while we strongly agree that the FBI database has serious limitations, Uber's position advocating for the rights of workers with records rings hollow unless it can demonstrate, with hard data (e.g., internal audits), that its commercial background checks are more accurate than the FBI's records. Equally important, as argued in a recent NELP paper, Uber and most other on-demand employers should be fully complying with the civil rights and consumer laws that protect workers navigating employment background checks. That means recognizing that the drivers, indeed, have rights under Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act, which can be enforced independently by the federal enforcement agencies and the courts.
Our concern with the position of lawmakers -- that FBI records are the "gold standard" of background checks and should be applied to more ride-hailing drivers -- is that it fails to adequately appreciate the limitations of the FBI records. We appreciate the need to ensure a level playing field of background checks for all taxi drivers, but policymakers have to take seriously the damage done by FBI background checks in the name of consumer safety.
To help rectify the situation, both sides should be actively supporting bi-partisan legislation now pending in Congress to clean up the FBI background checks for employment. In addition, the states and localities considering legislation to extend FBI background checks to on-demand drivers should follow California's lead and track down the missing dispositions before the records are released to the occupational licensing authorities. Finally, to adequately protect all workers seeking to become taxi drivers, both sides should embrace the occupational licensing reform recommendations set forth in NELP's recent report, Unlicensed and Untapped: Removing Barriers to State Occupational Licenses for People with Records, which will help prevent discrimination against people of color and promote the integrity of the background checks process.
Maurice Emsellem is program director with the National Employment Law Project.