06.14.12

Recap of the EEOC Guidance regarding Title VII and the use of arrest and conviction records in the hiring process.

Posted in Uncategorized at 7:38 pm by Administrator

EEOC Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 

  • Summary – This guidance discusses an employer’s use of criminal history in making employment decisions, builds on previous guidance, focuses on employment discrimination, discusses the differences between arrest and conviction records, discusses disparate treatment and disparate impact, compliance with federal laws that conflict with Title VII, when state and local laws are preempted by Title VII, and best practices for employers
  • Introduction – The EEOC enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination.  From 1991 to 2007 there are been an increase from 1.8% to 3.2% of the population with some form of correctional control on their record, with Hispanics and African Americans having higher rates than Whites.  This policy takes into consideration past guidance and updates/consolidates all prior policy statements and is effectively immediately (as of the April 25, 2012 publication)
  • Background
    • Criminal History Records – are obtained in a variety of ways, by court records, law enforcement and corrections agency records, registries/watch lists, FBI lists, databases, etc.   Employers may perform background checks themselves but often rely on reporting agencies (CRAs).  The Fair Credit Reporting Act governs criminal record reporting.  Arrest records may generally not be reported where the arrest did not result in a conviction, where the arrests occurred more than seven years ago.  However, convictions may be reported indefinitely.
    • Employer’s Use of Criminal History Information – SHRM Jan 2010 survey indicated 92% of employers use some sort of background investigation in an effort to combat theft, fraud, and violence, and to guard against negligent hiring suits.  Some checks are also mandated by some form of governing law.
    • The EEOC’s Interest in Employer’s Use of Criminal Records in Employment Screening – is determined using tow analytic frameworks.  1)  disparate treatment and 2) disparate impact.
    • Disparate Treatment Discrimination and Criminal Records is a violation of Title VII when the plaintiff demonstrates that he has been treated differently because of race, national origin, or another protected basis.  Evidence that may be used to establish an employer’s use of criminal records in a selection decision may include biases statements, inconsistencies in the hiring process, comparators, employment testing, and statistical evidence.
    • Disparate Impact Discrimination and Criminal Records violates Title VII when it is demonstrated that an employer’s facially neutr4al policy or practice has the effect of disproportionately screening out a protected group And the employer fails to demonstrate that the policy is job related or is consistent with business necessity.  In 1971 Griggs v. Duke Power brought disparate impact to the forefront as the court explained that some practices are fair in form, but discriminatory in operation. 
      • Determining Disparate Impact of Policies or Practices that Screen Individuals Based on Records of Criminal Conduct
        • Identifying the Practice or Policy is the first step in the disparate impact analysis, including the policy as written, which offenses or classes of offenses were reported, whether convictions, arrests, charges were reported, and how far back in time the reports reached.  Training policies on the use criminal information is also often considered.
        • Determining Disparate Impact is based on how much higher African American and Hispanics are arrested and incarcerated than the general population.  Therefore blanket exclusion policies based on criminal records have a disparate impact based on race and national origin. 
  • Job Related for the Position in Question and Consistent with Business Necessity
    • Generally speaking it is the burden of the employer to show that the hiring policy is one the “bear a demonstrable relationship to successful performance of the jobs for which is was used” and “measures the person for the job, not the person in the abstract.  Courts have also emphasized that the terms of an exclusionary policy must be “shown to be necessary to safe and efficient job performance.
    • Arrests are not proof of criminal misconduct – based on innocent until proven guilty.  An arrest, however, in some circumstances, may trigger an inquiry into the underlying conduct that triggered the arrest.  Arrest records often do not contain the final disposition, which might have been a dismissal or an acquittal.
    • Convictions, by contrast, usually serve as sufficient evidence that a person engaged in a particular conduct.  It is noteworthy that some convictions may later be expunged or downgraded based on some particular rehabilitative effort.  Some states have “banned the box” by not asking about criminal records convictions on the employment application which others ask about the convictions further down the hiring pipeline.  The commission recommends that employers not ask about convictions on job applications and that when they make such inquiries that they be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.

Determining Whether a Criminal Conduct Exclusion is Job Related and Consistent with Business Necessity.  Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

  • The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
  • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three GREEB factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
  • Validation – formal techniques rooted in social science that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications.  These studies are currently very rare, and are usually cost prohibitive for most employers.
  • Detailed Discussion of the “GREEN” Factors and Criminal conduct Screens
    • The nature and Gravity of the Offense of Conduct
      • Careful Consideration of the nature and gravity of the offense may be assessed with reference to the harm caused by the crime, and the severity, often evidence through classification of misdemeanor or felony.
      • The Time that has Passed Since the Offense, Conduct and/or Completion of the Sentence
        • Whether the duration of exclusion is sufficient to satisfy the business necessity standard depends on the particular facts of each case.
        • The Nature of the Job Held or Sought
          • This may include job title, duties, essential functions, level of supervision, exposure to the public, and environment in which the job is performed.
      • Examples of Criminal conduct Exclusions that do not consider the GREEN Factors are policies or practices requiring an automatic, across-the-board exclusion from all employment opportunities because it does not focus on the dangers of particular crimes and associated risks.
      • Targeted Exclusions that are guided by the GREEN Factors are target exclusions tailored to the rationale for their adoption, in light of the particular criminal conduct and the jobs involved based on fact based evidence, legal requirements, and/or relevant and available studies.
      • Individualized Assessment generally means that an employer informs an individual that he may be excluded because of past criminal conduct, provides an opportunity to the individual that the exclusion does not properly apply, and considers whether the individual’s additional information shows that the policy as applies is not job related or consistent with business necessity.  The applicant must be given the opportunity to relate the facts or circumstances surrounding the offense of conduct.  Also relevant is the number of offenses, age at the time of the offense, evidence that the individual successfully performed the same type of work previously without incident, employment and character references, whether the individual is bonded, and rehabilitative efforts/training.
  • Less discriminatory Alternatives may come into play when a plaintiff demonstrated that there is a less discriminatory alternative employment practice that serves the employer’s legitimate goals as effectively as the challenged policy, but the employer refused to adopt.
  • Positions Subject to Federal Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct.  Some industries are subject to regulatory requirements that prohibit individuals with certain criminal records from holding certain position.  Compliance with federal laws is a defense to a charge of discrimination.
  • Positions Subject to State and Local Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct.  States and local jurisdictions have laws and/or regulations that restrict or prohibit the employment of individuals with certain criminal conduct records.  If an employer’s exclusionary policy, although adopted to comply with state or local law, does not bear out business necessity, it may be subject to prosecution under Title VII.  Following the state or local law will not always be a defense.

 

  • Employer Best Practices
    • Generally
      • Eliminate policies or practices that exclude people from employment based on any criminal record.
      • Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
  • Developing a Policy
    • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
      • Identify essential job requirements and the actual circumstances under which the jobs are performed.
      • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
      • Identify the criminal offenses based on all available evidence. Determine the duration of exclusions for criminal conduct based on all available evidence.
      • Include an individualized assessment.
      • Record the justification for the policy and procedures.
      • Note and keep a record of consultations and research considered in crafting the policy and procedures.
      • Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
  • Questions about Criminal Records
    • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Confidentiality
    • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

02.23.12

Department of Justice FREE Webinars on Employment Verification

Posted in Uncategorized at 3:34 pm by Administrator

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices has announced upcoming monthly webinars on employment verification issues. Workers and worker advocates may join the monthly worker/advocate track webinar, and employers/HR professionals may join the monthly employer track webinar. The next employer/HR webinars are scheduled for February 22, March 21, and April 30, 2012. The next worker/advocate webinars are scheduled for March 13 and April 17, 2012. For more information or to register, see http://www.justice.gov/crt/about/osc/webinars.php

02.18.12

E-Verify Self-Check is a Breeze

Posted in Uncategorized at 1:10 am by Administrator

I just finished the E-Verify Self-Check on myself.  It was a breeze.  I didn’t even need to go and grab any extra documentation.  All I needed was what I knew in my head.

The USCIS recently announced that the E-Verify Self-Check is now available for all 50 states.  It’s a grand tool for individuals seeking employment.

However, I wonder how the system will be abused or misused by those looking to profit from identity theft/fraud.  Time will tell.

Check out this very long link to the Self-Check Web site:  http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2ec07cd67450d210VgnVCM100000082ca60aRCRD&vgnextchannel=2ec07cd67450d210VgnVCM100000082ca60aRCRD

02.16.12

What’s the next hurdle in Background Check Due Diligence?

Posted in Uncategorized at 5:22 pm by Administrator

Over the past year or so, there has been much ado about background screeing, especially from the EEOC.  Due Diligence, Disparate Impact, and Engaging Workforces have been at the forefront of conversations.  Lasty year’s hearings at the EEOC brought a new light on how the background screening industry is seen by the commission, and Commissioner Lipnic was kind enough to attend the last NAPBS conference in Orlando, Florida to discuss the commission and its position, and perhaps where the commission would be heading in the future.

On March 13, 2012, another session will be held that will also, undoubtedly, shed light on position statements, and add new vision to what the next hurdle will be in Background Check Due Diligence.  Held at the U.S. Chamber of Commerce in Washington, DC, another esteemed panel of speakers will weigh in on issues that affect the Background Screening Industry with regards to Protecting the Safety of Employees, Customers, and at-Risk Populations.  Among the speakers:

  • Commission Victoria Lipnic of the EEOC
  • Stuart K. Pratt, President and CEO, Consumer Data Industry Association
  • Garen Dodge, Partner, Jackson Lewis LLP
  • Commissioner Peter N. Kirsanow, U.S. Commission on Civil Rights
  • Bob Belair, Partner, Arnell Golden Gregory LLP
  • Jeff Sedgwick, Ph.D , Managing Partner and Co-Founder, Keswick Advisors
  • Alfred Blumstein, J. Erik Jonsson University Professor of Urban Systems and Operations Research, Carnegie Mellon University

Also with plans to attend is the NAPBS’ own Monserrat Miller.

It will be interesting to see how – and if – this panel presentation and related discussions leans towards or away from the interests of the background screening industry.

For the full agenda or to register for the event follow http://www.regonline.com/builder/site/Default.aspx?EventID=1061707.  If you are with the NAPBS there is a special room rate at the Embassy Suites.