Is Your Criminal Background Check Policy Consistent with the EEOC's Updated Guidance?

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Information about Is Your Criminal Background Check Policy Consistent with the EEOC's...
Education

Published on March 6, 2014

Author: MatthewRKorn

Source: slideshare.net

Description

During this webinar, Matthew Korn and Stephen Mitchell reviewed the Equal Employment Opportunity Commission's Enforcement Guidance regarding the use of criminal background checks for employment purposes. Matthew and Stephen provided guidance to employers on how to draft a background check policy that is consistent with the EEOC's guidance, while protecting your Company from unnecessary risk.

Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® Is Your Criminal Background Check Policy Consistent with the EEOC’s Updated Guidance? Presented by: Stephen C. Mitchell smitchell@laborlawyers.com Matthew R. Korn mkorn@laborlawyers.com www.laborlawyers.com Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC

Overview • What is the EEOC thinking? • What is disparate impact? • Who is Green and what’s an “individualized assessment”? • Do I really have to consider applicants with felony convictions? • Is my policy consistent with the Guidance? Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

The EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII • Consolidates and supersedes prior policy statements • “Designed to be a resource” – Employers, Employment Agencies, Unions – Applicants and Employees – EEOC Enforcement Staff • El v. Southeastern Pennsylvania Transportation Authority(SEPTA), 479 F.3d 232 (3d Cir. 2007) • Public meetings in 2008 and 2011 • Strategic Plan for 2012-2016 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Disparate Treatment v. Disparate Impact Disparate Treatment Disparate Impact • Different treatment based on race or national origin. • Similarly situated. • Must be intentional. • Inconsistencies in hiring process. • Legitimate, non-discriminatory reason. • Pretext. • Facially-neutral policy. • Disproportionate effect on members of a protected class. • Statistical evidence. • Validation. • Job related and consistent with business necessity. • Individualized assessment. • Less discriminatory alternative. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Application Questions? • Have you ever been convicted? • Have you been convicted of a felony in the past ten years, or a misdemeanor involving theft or violence in the past five years? • Job Related and Consistent with Business Necessity? • No questions? Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Arrests vs. Convictions • Arrests. – Independent investigation. – Underlying conduct. • Convictions. – Validation. – Job related and consistent with business necessity. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Validation Defense • Uniform Guidelines on Employee Selection Procedures – Data or analysis about criminal conduct as related to subsequent work performance or behaviors. • Is it possible to validate criminal background policies? – EEOC states that there are few studies available on this issue. – Would need to hire applicants with criminal background and determine effect on job performance or behaviors. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Job Related and Consistent with Business Necessity • No Blanket Policies. • The nature and gravity of the offense or conduct, including: – Harm caused – Specific elements of the crime – Felony or misdemeanor • The time that has passed since the offense or conduct and/or completion of the sentence. • The nature of the job held or sought. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Recordkeeping • Written criminal background check policy. – Used internally by hiring managers. • Job descriptions. – Essential functions. • Studies and statistics. – U.S. DOJ – Bureau of Justice Statistics. – State-specific recidivism data. • Consideration of Green factors. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Individualized Assessment • Give each applicant an opportunity to provide information, which could include: – – – – – – – – The facts or circumstances surrounding the offense or conduct; The number of offenses for which the individual was convicted; Older age at the time of conviction, or release from prison; Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct; The length and consistency of employment history before and after the offense or conduct; Rehabilitation efforts, e.g., education/training; Employment or character references and any other information regarding fitness for the particular position; and Whether the individual is bonded under a federal, state, or local bonding program. • Consider information and grant waivers where warranted. • Be careful to avoid disparate treatment. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Less Discriminatory Alternative • Equally effective means of reaching the same goal or business objective. – Longer period to dispute. – Different policies. • Difficult without validation, like comparing apples to oranges. • Burden on EEOC or employees. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Federal and State Laws and Regulations • Federal law and regulations. – Can shield you from liability. – Can still be liable to extent exceeded. – Example – Section 19 of the FDIA. • State law and regulations. – Applications, policies may be regulated. – Title VII preempts state law. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Night at the Rock’s Berry Club • Hiring: – Bouncer – Bartender – Disc Jockey Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Criminal Background Check Policy • Applies to: – All applicants for all positions. • Exclusions include: – Any felony conviction within the past 10 years. – Any misdemeanor involving violence or theft within the past 5 years. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Bouncer Job Description • Essential functions include: – Removing intoxicated patrons from the night club. – Friendly customer service. – Ability to stand for long periods of time. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Bouncer Applicants – Mark, Damian, and Larry • • Clean Record. Bouncer at Hawk’s Club between 2007 and 2010, but fired for getting into a fight. • • • • Felony assault and battery in 1995. Released from prison in 1997. Misdemeanor petty larceny in 2009. Bouncer at Jo Jo’s night club since 2010 – good reference. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000 • • • • Misdemeanor simple assault in 1999. Felony armed robbery in 2006. Released from prison in 2009 for good behavior. Unemployed since 2011.

DJ Job Description • Essential functions: – Knowledge of current music and trends. – Ability to get crowd engaged. – Promotion and marketing of club. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

DJ Applicants – Mary, Terrence, and Gail • • Arrest for copyright infringement based on Napster downloads. DJ at Jo Jo’s night club since 2006. • • • Felony grand larceny in 2003. Released from prison in 2005. DJ at Hawk’s Club since 2005 – good reference. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000 • • Misdemeanor fraudulent check conviction in 2009. Arrested for drunk and disorderly conduct and resisting arrest in 2010, but no conviction.

Bartender Job Description • Essential functions: – Knowledge and enforcement of ABC laws. – Cash handling and receipts. – Creating a fun and friendly environment. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Bartender Applicants – Sam, Julie, and Tom • • Clean record. Bartender certification, but no experience. • • • Misdemeanor petty theft in 2009. Bartender at Jo Jo’s night club since 2010. Employee of the year at Jo Jo’s, two years in a row. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000 • • • Felony embezzlement conviction in 2006. Released from prison in 2008. Working at fast food chain since 2009.

Revised Criminal Background Check Policy • Consider running criminal background reports after interviewees have been identified or after extending contingent offer of employment. • Consider running criminal background checks on particular jobs supported by studies or statistical evidence, and consider requesting information for specific offenses. – Bouncer? • Felony conviction involving violence in the past five years. – Bartender? • Felony conviction involving theft in the past five years. – Disc Jockey? • No exclusions based on criminal history. • Make an individualized assessment. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

To-Do List • Review your current policy and job classifications to determine job relatedness. • Revise policy and document your considerations and supporting information. • Create a process to allow applicants to submit individual information. • Perform legal review of revised policy. • Train hiring managers and decision makers. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000

Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® If you have any questions, please feel free to contact us. Thank You Presented by: Stephen C. Mitchell & smitchell@laborlawyers.com Matthew R. Korn mkorn@laborlawyers.com Fisher & PhillipsLLP www.laborlawyers.com ATTORNEYS AT LAW Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville ® Solutions · Phoenix Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia at Work · Portland · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com Phone (803) 255-0000

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