Archive | May 2012

Ways to Minimize EEOC Risk Using Background Checks

The EEOC has noted that use of criminal background information in hiring decisions can result in discrimination against protected classes.  The use of criminal records for employment decision making is not prohibited by federal law.  Still, an employer may be required to establish how the use of criminal records is “job related and consistent with business necessity.”

There are several steps that an employer can take to reduce the risk of utilizing criminal records when making employment decisions:

1. Adopt a written policy or procedure for using criminal conduct in the review of candidates and employees;

2. Obtain criminal record reports  that are “job related for the position in question and consistent with business necessity”;

3. Employ individual review questioning whether the screening process is job-related and consistent with business necessity;

4. Train management and those involved in employment decisions regarding the company policy or procedure;

5. Maintain confidentiality for all criminal records; and

6. Follow the policy or procedure that is adopted.

Happy Memorial Day

Holidays are often great times to rest and reflect.  Memorial Day is no exception.  Holidays are a good time for businesses to reflect on their employees as well.  While not everyone has a day off on a holiday, most do.  When you communicate with your employees, holidays are a good time to let them know that you appreciate that they are a part of your work family.  Little comments like those go a long way to creating a caring culture for your company.

EEOC Guidance on Background Checks

As I have commented before, the use of background checks by employers has increased significantly in recent years.  There are now services everywhere, and the cost for these checks has dropped significantly.  With the studies that document the cost to replace an employee, employers are looking to any means to screen candidates more effectively.    The EEOC has cited studies that indicate as many as 90% of applicants undergo criminal background checks.

With that backdrop, the EEOC has provided Enforcement Guidance No. 915.002 regarding the use of criminal background information.  This document does not alter the legal framework that covers background checks but sets out several points for consideration by employers.

Because certain racial and ethnic groups may be incarcerated at a higher statistical rate than others, use of criminal history for employment decisions could result in discrimination under Title VII.  This discrimination would arise under one of two theories:  disparate treatment or disparate impact.  For disparate treatment, an employer treats a person differently because of race or national origin (allowing “group-related stereotypes” or allowing a non-minority applicant to explain criminal history while not allowing a minority candidate to do so).

For disparate impact, a policy or practice that seems neutral on its face may discriminate if it serves to screen out a protected group in a disproportionate way, and the policy or practice is not specifically job-related for the position and necessary to business.  The EEOC has found that national data for arrest and incarceration rates for African Americans and Hispanics are sufficient for a finding of disparate impact for those protected groups when using criminal background data without job-related conditions.  That finding shifts the burden of proof to the employer to show no disparate impact but can be contradicted by local data or information by a particular employer about its own hiring practices.   There are a number of factors to review, and the EEOC draws a sharp contrast between convictions and arrests.  For further information, the EEOC Guidance can be accessed by clicking on this link:  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

Regulations for Teen Workers

With the end of the school year fast approaching, there are many school-age children looking for summer jobs.  Is there anything you should consider when you get an inquiry from an employee about having the employee’s middle or high schooler perform odd jobs during the summer?  There are different regulations depending on the age of the child and the job to be filled.  The FLSA child labor regulations adopted two years ago were the first changes to those regulations in 40 years.

Generally, those under 16 have not been allowed to work in non-agricultural jobs.  While the nearly 60 page final rule has many provisions, there are a few new rules of thumb for 14- and 15-year-olds.  First, as before, what is not specifically allowed is prohibited.  Now 14- and 15-year-olds can provide some computer and office work in accounting, advertising, banking, and information technology offices.  The rules provide many examples of what equipment they can handle and what jobs they can perform.  During the school year, they cannot work more than three hours per day on a school day, even Friday.  School hours are defined by the local public school, even if the teen does not attend school there.

FCRA Claims and Disclosures

There are reports of increasing litigation over credit reporting activities by employers.  That is due in part to the fact that more employers are routinely conducting background checks.  It is also due to the fact that employers may not comply with the Fair Credit Reporting Act when it applies.  Penalties under FCRA can range from $100 to $1,000 per violation.  Also, in addition to actual damages such as lost wages, punitive damages are also available even when actual damages cannot be proved.

There are three disclosure provisions under FCRA.  First, an employer must obtain a written authorization form from applicant or employee before running a consumer report.  This authorization must be a stand-alone form, not a notice or clause in an application.  Second, there must be a pre-adverse action notice when negative information is found.  This requirement is often ignored because it can hamstring or slow the employer’s attempt to fill an open position.  The law intends that the applicant or employee will have an opportunity to learn the negative information and respond to it.  Third, an employer must provide a post-adverse action notice if a decision was based on the negative consumer report.  Then, the applicant or employee has a reasonable time to dispute and correct the information.