Background Screening and You – Your Questions Answered

Screenshot of webinar

On April 26th, we devoted a full hour-long webinar to “Background Screening and You: All YOUR Questions Answered.” This was your webinar, your questions, everything you ever wanted to know about background screening right now. Our attendees were allowed to pick the brains of some of the best in the employment screening business including Nick Fishman and Angela Bosworth from EmployeeScreenIQ, Darby James, Director, HR Program Administration and Global Badging at United Airlines and Ron Bower, President of Bower Consulting Group.

We recorded the webinar which is available for download at http://www.employeescreen.com/webinar_employee_screening_and_you.asp

Lighthouse Academies Safeguards Scholars With Comprehensive Background Checks

WG LJones IMG_2765 smlr

We just published a great case study about our relationship with the folks at Lighthouse Academies.  Check out the preview below.

Every employer knows that hiring the most qualified individuals is smart business. But when your business is helping to transform the lives and futures of America’s underserved children, hiring the most qualified people isn’t merely smart. It’s essential.

Just ask Cheryl Bates, Director of Operations at Lighthouse Academies’ (LHA) national office in Framingham, Massachusetts. LHA is a nonprofit organization that works with students in underserved communities across the country, preparing them for college through a rigorous arts-infused program led by a staff of trusted teachers and volunteers. Every member of LHA’s staff is charged with instilling the knowledge, skills and values their students need for responsible citizenship and life-long learning.

“We take our mission very seriously,” says Bates. “As a result, we require every LHA teacher, volunteer and staff member to be thoroughly screened and background-checked. There’s no such thing as being too careful or too thorough, not with the safety of our scholars and the quality of their education in our hands.”

It was this unflinching dedication to quality and the wellbeing of its students that prompted LHA to seek a new provider to conduct its background checks.

“Over time, we discovered deficiencies in the screening resources we were using,” Bates says. “For example, we learned that instant background checks are definitely not thorough background checks. They actually leave a lot to be desired, despite their claims. We also realized that many of the popular databases simply aren’t extensive enough to meet LHA’s needs, and many of the vendors don’t update their information frequently enough. That’s why we began researching alternative screening providers and it’s what led us to EmployeeScreenIQ.”

Read More

Case Study: Lighthouse Academies Safeguards Scholars With Comprehensive Background Checks

WG LJones IMG_2765 smlr

We just published a great case study about our relationship with the folks at Lighthouse Academies.  Check out the preview below.

Every employer knows that hiring the most qualified individuals is smart business. But when your business is helping to transform the lives and futures of America’s underserved children, hiring the most qualified people isn’t merely smart. It’s essential.

Just ask Cheryl Bates, Director of Operations at Lighthouse Academies’ (LHA) national office in Framingham, Massachusetts. LHA is a nonprofit organization that works with students in underserved communities across the country, preparing them for college through a rigorous arts-infused program led by a staff of trusted teachers and volunteers. Every member of LHA’s staff is charged with instilling the knowledge, skills and values their students need for responsible citizenship and life-long learning.

“We take our mission very seriously,” says Bates. “As a result, we require every LHA teacher, volunteer and staff member to be thoroughly screened and background-checked. There’s no such thing as being too careful or too thorough, not with the safety of our scholars and the quality of their education in our hands.”

It was this unflinching dedication to quality and the wellbeing of its students that prompted LHA to seek a new provider to conduct its background checks.

“Over time, we discovered deficiencies in the screening resources we were using,” Bates says. “For example, we learned that instant background checks are definitely not thorough background checks. They actually leave a lot to be desired, despite their claims. We also realized that many of the popular databases simply aren’t extensive enough to meet LHA’s needs, and many of the vendors don’t update their information frequently enough. That’s why we began researching alternative screening providers and it’s what led us to EmployeeScreenIQ.”

Read More

Background Screening and You – Your Questions Answered (Recorded Webinar)

Screenshot of webinar

On April 26th, we devoted a full hour-long webinar to “Background Screening and You: All YOUR Questions Answered.” This was your webinar, your questions, everything you ever wanted to know about background screeningright now. Our attendees were allowed to pick the brains of some of the best in the employment screening business including Nick Fishman and Angela Bosworth from EmployeeScreenIQ, Darby James, Director, HR Program Administration and Global Badging at United Airlines and Ron Bower, President of Bower Consulting Group.

We recorded the webinar which is available for download athttp://www.employeescreen.com/webinar_employee_screening_and_you.asp

Lighthouse Academies Safeguards its Scholars and its Reputation with Truly Comprehensive Background Checks

Screen Shot 2015-03-25 at 8.40.52 PM

 

To safeguard the wellbeing of the children, families and communities LHA serves, its background searches needed to be exhaustive and meticulous. LHA also required a comprehensive range of screening services including checks related to identity, criminal records, credit history and educational credentials, among others.

EEOC Commissioner Takes Colleagues to Task on New Guidelines

As detailed in our blog post yesterday, we are highly disappointed with the new EEOC guidelines on criminal background checks and the burden they will place on employers going forward.  The outcome leaves employers with vague direction and no real road-map for compliance, while limiting their ability to protect their employees, their customers and their businesses.  If anything, it just exposes them to further litigation from the EEOC and private litigants.

I think EEOC Commissioner Constance Barker captured the essence of our grievances with the EEOC’s actions in her dissenting opinion which included the following:  “My concern for this Commission is how this Guidance will be received by the courts.  To the extent that we have re-written Title VII, the courts will NOT give it deference.  That saddens me because this Commission does not need to be embarrassed again by the courts.”

Check out this excerpt from her response to the new guidelines. This is well-worth the read.

Constance Barker

Comments to the Commission

April 25, 2012

Proposed New Guidance:  CRIMINAL BACKGROUND CHECKS

I object to – and will vote against – the proposed new Guidance on Criminal Background Checks for 4 fundamental reasons:

First and foremost – I object to the utter and blatant lack of  transparency in the approval process.  The proposed revision before us today represents a major shift in the advice we have given the American public for the last 22 years.  Yet, we are about to approve this dramatic shift in our interpretation of the rights of job applicants and the obligations of America’s businesses under Title VII without ever circulating it to the American public for review and discussion. There is absolutely no justification for totally excluding the American people from this process or for this blatant failure to be transparent in how we conduct our business. I am devoted to the issue of civil rights and to the work of this Commission, but if we vote to approve this Guidance today, how can we expect the American people to have confidence that this agency operates openly  and with full transparency?  We are public servants.  We work for the American people.  What could possibly justify keeping them from knowing what is in this document before we approve it?

This particular proposed new Guidance – which in reality is a kind of regulation –  has tremendous implications for Americans.  It is exactly the type of policy shift that we should share with the American people — ask them to take a look, tell us what they think — have we forgotten anything — have we explained things well or is it confusing — and most importantly — how will this impact you.   But we didn’t do that.  Instead, the document was rapidly brought to a vote without the American people ever having a chance to see what is in it.  That is just plain wrong.

There are people in the Commission Room  today and throughout America who have considerable expertise in the subject the Guidance addresses, yet we are about to give final approval to this draft without ever letting any of these experts or the public at large see a single word that it contains.  And, we are approving it without even bothering to  submit it to OMB for their expert review.

That begs the question — why?  Why don’t we want America to see what’s in this document before we make it final? We should have spent months reviewing and discussing this with the public as we have other regulatory and sub-regulatory documents.  Yes, the Commission did have a meeting on background checks and did hear from stakeholders on the general subject of the pros and cons of conducting criminal background searches but seeking general input is a far cry from sharing what is in the actual proposed revised Guidance.  As soon as a revised Guidance was drafted, the public was shut out.

Here is my second concern:  it is my understanding that the Senate Appropriations Committee, Subcommittee on Commerce, Justice & Science  — the  committee that determines our funding year to year — under the direction of Chairman, Sen. Barbara Mikulski and ranking member, Sen. Kay Bailey Hutchinson, in the Report attached to the Appropriations Bill, specifically addressed their concerns about the haste with which this Commission was proposing to approve changes to the current Criminal Background Checks Guidance and specifically instructed the Commission to (a) engage stakeholders in discussion about the intended changes to the criminal background checks guidance and (b) circulate any proposed changes to the Guidance for public input for at least 6 months before bringing it  before the Commission for a vote.  When the Senate Appropriations Committee – the Committee that controls our funding – attaches to the bill that will determine our funding – specific instructions to hold off taking any action on this revised Guidance until we have circulated a copy to the public for input for at least 6 months — it seems to me we should  take that seriously.  So, why is this even on the agenda today?  Are we seriously going to just ignore this directive from the Senate Committee that decides our funding?

Especially when – and here’s the irony – there is absolutely no need to take action on this today or anytime in the immediate future.   What is the big rush to approve this Guidance?  What would justify ignoring a Senate Appropriations directive and ignoring our obligation to be transparent with the American people? There have been no changes in Title VII  – no new Supreme Court decisions that would compel a single change to our current guidance.  In contrast – our Guidance on the use of arbitration agreements in employment contracts has been out-of-date and a misstatement of the law since the first Supreme Court decision on that subject in 1991.   As far as I know, there’s no effort being made to revise that Guidance.

Thirdly – I object to the guidance because it so obviously exceeds our authority as a regulatory commission.  We are an enforcement agency.  We have the authority to issue, amend or rescind suitable procedural regulations.  We have no authority to make substantive changes in the law by issuing Guidances that go beyond what is contained in the statutes as interpreted by the courts.  Our job is to follow Congressional intent and court interpretation — not make new law.  No matter how well intentioned we may be — no matter how much a change in the law may be warranted — we simply lack the authority to make those changes through the issuance of Guidances.  It is Congress’ job — not ours — to weigh the pros and cons of proposed new legislation and approve or disapprove it.   We are not Congress. We are not part of the legislative branch.  And,  it is the job of  the courts to interpret the laws that Congress passes.  We are not the courts. We are not part of the judicial branch.  Our job is to explain what is already the law — not to expand it.    No matter how much some of us may want Title VII to provide additional protections we cannot use our authority to issue guidances, to create new rights or protections that Title VII does not provide.  If we think Title VII should be expanded, we should make our concerns known to Congress — not take it upon ourselves to do Congress’ job.


4/25/2012 New rules set on background checks for job seekers (MSNBC)

But companies view such screenings as necessary to keep the workplace safe, fight against theft and also to protect against negligent hiring suits, said Angela Bosworth, vice president of compliance and general counsel for EmployeeScreenIQ, a third-party employee screening firm.

“Right now, employers are trying to build up their workforces as the economy turns around and they’re able to hire again, but we’re concerned this will create a barrier,” she explained. “It’s going to muddy the waters on what employers can and can’t do.”

Breakdown of EEOC Guidance on Criminal Background Checks

Please note that this post was written by Angela Bosworth

It’s here!  The much anticipated EEOC guidance on the use of criminal records in employment was issued today, setting off a flurry of interpretations, complete with webinar invitations and blog posts. Not to be outdone, here’s our take on the matter.

By way of introduction, the road to new guidance was paved with protest, controversy and political horse-trading.  The EEOC has long maintained that the use of credit and criminal history in hiring can lead to “disparate impact” discrimination.  Disparate impact claims rely on statistical information to prove that use of criminal history and credit information has an unintended discriminatory effect on minorities. Studies that show a higher rate of arrests for blacks and Hispanics are often cited in disparate impact cases based on criminal history. While an increasing number of employers are seeking background checks out of security concerns, at the same time, more and more people are released every year from US prisons and jails. The growing ex-offender population, coupled with the economic climate and high unemployment, creates the perfect storm for disparate impact claims.

New criminal history guidance supports the Commission’s commitment to put an end to systemic discrimination and the push to help ex-cons get back to work.  In the past year, the EEOC has filed a record number of class action lawsuits alleging that employer’s use of credit and criminal history amounts to discrimination against blacks and Hispanics.  Pepsi recently paid a very well publicized 3.13 million dollars to settle a class action suit brought by the EEOC.

The push for new guidance is rumored to have been initiated by Obama-appointee and Chair Jackie Barrien, and was pushed to a vote this month due to the unexpected announcement from Democratic Commissioner Stuart J. Ishimaru that he would not finish his term. When he leaves at the end of April, Democrats lose their majority on the panel, and the chance of issuing this kind of guidance is slim. And because of the backlash the Obama administration has already encountered for recess appointments, the seat will likely remain vacant for the remainder of the year.

So without public comment or review, employers have been handed a new guidance to address using criminal history.  So what exactly is guidance, anyhow, and is it really just guidance?

Yes and no.  Technically speaking, the EEOC guidance is not binding on courts and carries no “official” legal weight. In practice, however, courts rely heavily on agency policy statements and the EEOC guidance in particular.  Employers understand and treat it like de facto legislation—Failure to heed the guidance may land you on the losing end of a class action suit in Federal Court.

The old guidance was issued in 1987 and recommended that before using criminal history information, employers had to take into consideration the following to demonstrate business necessity:

• the nature and gravity of the offense or offenses;

• the time that has passed since the conviction and/or completion of the sentence; and

• the nature of the job held or sought.

1987 EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. http://www.eeoc.gov/policy/docs/convict1.html

The EEOC also issued a 1990 policy statement on employers’ use of arrest records. Under that policy statement, employers have to consider the following before using arrest records to make an employment decision:

(i) the likelihood that the individual engaged in the conduct arrested for; and

(ii) job relatedness.

1990 EEOC Policy Statement on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

http://www.eeoc.gov/policy/docs/arrest_records.html

Blanket exclusions of individuals with criminal records have always been suspect, and the use of arrest records has historically been strongly discouraged.

The new guidance supersedes the old policy statements, but incorporates the guidelines. It is heavy on background information, case studies and examples. It is sprinkled with “best practices” with a healthy dose of footnotes. The major game changer is a new requirement for an employer’s defense: Individualized Assessment.

In summary:

  • Job relatedness and business necessity remain the legal standard for an employer’s defense. Two times when this standard is met are defined:
    • “The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); OR”
    • “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, the nature of the job (the Greene factors). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”
    • “Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”
    • Compliance with Federal law/mandate that conflicts with Title VII is a defense.
    • State and local laws are pre-empted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII

Other notables:

  • It’s looong. 52 pages long, to be exact. 26 are guidance, the remainder is endnotes.
  • The difference between arrest and conviction records is discussed at length.
  • No more enforcement language. It is geared solely to employers.
  • No prohibition on open/pending cases. While arrest records are inherently suspect in terms of disparate impact discrimination, on an individual basis consideration of an open/pending arrest is still allowed.
  • Individualized assessment is loosely defined as follows: an employer informs an individual that he may be excluded from a job because of past criminal conduct, provides an opportunity for the individual to demonstrate that the exclusion does not properly apply to him; and considers the individual’s additional information should change the decision (looking to job relatedness and business necessity.

The Individualized Assessment section of the document lists “relevant” evidence that an employer should consider.  This is a MUCH more extensive list than in prior statements.  The list includes facts or circumstances surrounding the offense, the number of convictions, the age at the time of the conviction/release from prison, evidence of no related incidents, rehabilitation, employment or character references, fitness for the position, and bonding.

If the individual does not respond to an employer’s request for additional information, the employer can make the decision without the additional information.  How long or under what circumstances an employer must wait is not clear.

The guidance gives many examples in an attempt to clarify when and what an employer can consider.  We will be providing a more detailed overview of the ways to establish job relatedness and business necessity as we review the Guidance in more detail.

The last portion of the Guidance is Titled “Best Practices”, and it digests the EEOC’s recommendations to employers who plan to use criminal records.  Besides the expected recommendations to train personnel on Title VII, develop policies and procedures, conduct individualized assessments, keep good records and notes, and maintain confidentiality, the Commission recommends that employers limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.  While this is not as specific as a “ban the box” limitation, it does suggest that employers need to review their background screening program to make sure they are asking for defensible information.

The Commission approved the guidance by a vote of 4-1, with Republican Constance Barker providing the lone no vote.

Click here to read EEOC press release

Click her to read the actual guidance

4/25/2012 New EEOC Guidance on Criminal Background Checks

Please note that this post was written by Angela Bosworth

It’s here!  The much anticipated EEOC guidance on the use of criminal records in employment was issued today, setting off a flurry of interpretations, complete with webinar invitations and blog posts. Not to be outdone, here’s our take on the matter.

By way of introduction, the road to new guidance was paved with protest, controversy and political horse-trading.  The EEOC has long maintained that the use of credit and criminal history in hiring can lead to “disparate impact” discrimination.  Disparate impact claims rely on statistical information to prove that use of criminal history and credit information has an unintended discriminatory effect on minorities. Studies that show a higher rate of arrests for blacks and Hispanics are often cited in disparate impact cases based on criminal history. While an increasing number of employers are seeking background checks out of security concerns, at the same time, more and more people are released every year from US prisons and jails. The growing ex-offender population, coupled with the economic climate and high unemployment, creates the perfect storm for disparate impact claims.

New criminal history guidance supports the Commission’s commitment to put an end to systemic discrimination and the push to help ex-cons get back to work.  In the past year, the EEOC has filed a record number of class action lawsuits alleging that employer’s use of credit and criminal history amounts to discrimination against blacks and Hispanics.  Pepsi recently paid a very well publicized 3.13 million dollars to settle a class action suit brought by the EEOC.

The push for new guidance is rumored to have been initiated by Obama-appointee and Chair Jackie Barrien, and was pushed to a vote this month due to the unexpected announcement from Democratic Commissioner Stuart J. Ishimaru that he would not finish his term. When he leaves at the end of April, Democrats lose their majority on the panel, and the chance of issuing this kind of guidance is slim. And because of the backlash the Obama administration has already encountered for recess appointments, the seat will likely remain vacant for the remainder of the year.

So without public comment or review, employers have been handed a new guidance to address using criminal history.  So what exactly is guidance, anyhow, and is it really just guidance?

Yes and no.  Technically speaking, the EEOC guidance is not binding on courts and carries no “official” legal weight. In practice, however, courts rely heavily on agency policy statements and the EEOC guidance in particular.  Employers understand and treat it like de facto legislation—Failure to heed the guidance may land you on the losing end of a class action suit in Federal Court.

The old guidance was issued in 1987 and recommended that before using criminal history information, employers had to take into consideration the following to demonstrate business necessity:

• the nature and gravity of the offense or offenses;

• the time that has passed since the conviction and/or completion of the sentence; and

• the nature of the job held or sought.

1987 EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. http://www.eeoc.gov/policy/docs/convict1.html

The EEOC also issued a 1990 policy statement on employers’ use of arrest records. Under that policy statement, employers have to consider the following before using arrest records to make an employment decision:

(i) the likelihood that the individual engaged in the conduct arrested for; and

(ii) job relatedness.

1990 EEOC Policy Statement on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

http://www.eeoc.gov/policy/docs/arrest_records.html

Blanket exclusions of individuals with criminal records have always been suspect, and the use of arrest records has historically been strongly discouraged.

The new guidance supersedes the old policy statements, but incorporates the guidelines. It is heavy on background information, case studies and examples. It is sprinkled with “best practices” with a healthy dose of footnotes. The major game changer is a new requirement for an employer’s defense: Individualized Assessment.

In summary:

  • Job relatedness and business necessity remain the legal standard for an employer’s defense. Two times when this standard is met are defined:
    • “The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); OR”
    • “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, the nature of the job (the Greene factors). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”
    • “Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”
    • Compliance with Federal law/mandate that conflicts with Title VII is a defense.
    • State and local laws are pre-empted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII

Other notables:

  • It’s looong. 52 pages long, to be exact. 26 are guidance, the remainder is endnotes.
  • The difference between arrest and conviction records is discussed at length.
  • No more enforcement language. It is geared solely to employers.
  • No prohibition on open/pending cases. While arrest records are inherently suspect in terms of disparate impact discrimination, on an individual basis consideration of an open/pending arrest is still allowed.
  • Individualized assessment is loosely defined as follows: an employer informs an individual that he may be excluded from a job because of past criminal conduct, provides an opportunity for the individual to demonstrate that the exclusion does not properly apply to him; and considers the individual’s additional information should change the decision (looking to job relatedness and business necessity.

The Individualized Assessment section of the document lists “relevant” evidence that an employer should consider.  This is a MUCH more extensive list than in prior statements.  The list includes facts or circumstances surrounding the offense, the number of convictions, the age at the time of the conviction/release from prison, evidence of no related incidents, rehabilitation, employment or character references, fitness for the position, and bonding.

If the individual does not respond to an employer’s request for additional information, the employer can make the decision without the additional information.  How long or under what circumstances an employer must wait is not clear.

The guidance gives many examples in an attempt to clarify when and what an employer can consider.  We will be providing a more detailed overview of the ways to establish job relatedness and business necessity as we review the Guidance in more detail.

The last portion of the Guidance is Titled “Best Practices”, and it digests the EEOC’s recommendations to employers who plan to use criminal records.  Besides the expected recommendations to train personnel on Title VII, develop policies and procedures, conduct individualized assessments, keep good records and notes, and maintain confidentiality, the Commission recommends that employers limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.  While this is not as specific as a “ban the box” limitation, it does suggest that employers need to review their background screening program to make sure they are asking for defensible information.

The Commission approved the guidance by a vote of 4-1, with Republican Constance Barker providing the lone no vote.

Click here to read EEOC press release

Click her to read the actual guidance