… posted feedback on the official statements from the U.S. Commission on Civil Rights regarding the EEOC guidance.
Military Employment Background Checks Slowing Down Hiring
Former president George W. Bush took to the airwaves this week to announce a worthy program he is launching to help veterans transition back to civilian life and treat those that suffer from post-traumatic stress disorder. In doing so, President Bush pointed out that unemployment rates for veterans now hovers at an …
… posted feedback on the official statements from the U.S. Commission on Civil Rights regarding the EEOC guidance.
As many of your know, I had the privilege of providing testimony to the U.S. Commission on Civil Rights at their hearing on the impact of criminal background checks and the EEOC’s conviction policy on the employment of Black and Hispanic workers in December of 2012.
After great debate and deliberation, the commission released their official statements regarding the hearing in mid-February. I’ve been dissecting the material for a couple weeks now and there is simply no way to give you all of the highlights and lowlights. Instead, I’d like to focus on the conclusion (below) drawn by Commissioner Peter N. Kirsanow (joined by Vice Chair Thernstrom and Commissioner Gaziano), in which I’ve highlighted several key points.
The last part of their conclusion says it all for me: “The EEOC seems to live in a magical world where forcing employers to hire a person they do not want to hire because he may be untrustworthy or dangerous has no costs. But just because the EEOC does not see the cost doesn’t mean it doesn’t exist.”
No one wants a truly reformed ex-offender to be forever unemployed. The question is whether this Guidance is the best way, or even a reasonable way, of increasing employment among ex-offenders. The EEOC should also remember that employers’ interests should be taken into account as well. After all, they are not the ones who broke the law. “I was complying with the EEOC’s Guidance” is not much of a defense in a negligent hiring lawsuit. Although the Guidance does not prohibit the use of criminal background checks, it strongly discourages their use and encourages employers to err on the side of hiring ex-offenders.
In many cases, the Guidance encourages employers to hire an ex-offender against their better judgment. If that were not so, employers would be leaping to hire ex-offenders without being prodded by the EEOC. Whether the employer fears the ex-offender will steal from the business or harm a customer, it is foolish to push him to override his judgment, especially when sixty percent of ex-offenders will recidivate.
EEOC Commissioner Lipnic and Ms. Miaskoff both portrayed this guidance as a mere refinement of the 1987 Guidance, rather than a sharp departure. But then why would EEOC Commissioner Lipnic state that a blanket rule against hiring felons would no longer be permissible? That is a sharp departure from previous practice.
Additionally, the effort the EEOC has put into publicizing this Guidance, taken in conjunction with the many lawsuits it has filed over the last few years regarding the use of criminal history in hiring, suggests that the EEOC will be interpreting and enforcing the Guidance more aggressively than it has in the past.
The EEOC and various groups representing ex-offenders will argue that a criminal record should not be a life-long scarlet letter. If ex-offenders cannot find employment, they are more likely to reoffend. Fair enough. But the burden of rehabilitation shouldn’t fall on private companies. If a company believes that an applicant is the best person for a job regardless of their criminal record, they will hire them. If they wouldn’t hire the person with a criminal record but for the fear of an EEOC investigation, the employment market is distorted and a cost is imposed on the company.
Griggs imposes this sort of regime on companies with regard to race and the use of tests and education requirements, but at least Title VII was clearly enacted to prohibit racial discrimination. Despite the Guidance’s invocation of disparate impact theory, the main goal is to increase the employment of ex-offenders. Title VII was definitely not enacted to prohibit discrimination on the basis of criminal history. If the country wants to shift the cost of criminal rehabilitation onto private employers, Congress should pass a statute prohibiting discrimination on the basis of criminal history. Otherwise, this is outside the EEOC’s purview.
The Guidance will have other costs too. For small companies that have the resources to hire attorneys, figuring out how to comply with the Guidance will cost several thousand dollars – money that could have been used to hire a new employee. For large companies, complying with the Guidance will add another level of inefficiency to hiring. In an effort to avoid the eye of the EEOC, companies may avoid using background checks and simply hire only the number of blacks they need to avoid scrutiny – and no more. The EEOC seems to live in a magical world where forcing employers to hire a person they do not want to hire because he may be untrustworthy or dangerous has no costs. But just because the EEOC does not see the cost doesn’t mean it doesn’t exist.
I don’t believe that the EEOC went out of their way to hatch a sinister plan to systematically punish employers. However, that might just be my naivete. If they did, that’s a much bigger problem. This past summer, I offered 5 suggestions for what can be done to allay employment background check discrimination concerns. It would be great if all interested parties got together and crafted a workable solution for all involved.
It’s official—San Francisco has banned the box. Employers in the city or county of San Francisco may no longer inquire about criminal history on employment applications or during interviews. Titled the The Fair Chance Ordinance, No. 17-14, the new law goes into effect on August 13, 2014 and prohibits both private and public employers with at least 20 employees from asking about a criminal past on the job application or in an initial interview. The law also restricts asking about criminal history on applications for affordable housing within the city. With respect to employment, the law applies to temporary workers, contract workers, and city contractors and subcontractors.
If an employer wants to screen for criminal history information, the ordinance adds some new requirements. In addition to delaying the criminal question until post interview or post-offer, it also requires additional notification prior to any inquiry, notice prior to taking a negative action, and an individualized assessment to give the applicant a chance to ask for reconsideration.
If you read through this summary and it sounds remotely familiar, it should. This law is a mash up of the already required authorization and disclosures of the Fair Credit Reporting Act (FCRA), adverse action requirements of FCRA, and notice requirements under the California Investigative Consumer Reporting Agencies Act (ICRAA). Throw in the EEOC’s “individualized assessment” requirements under the guidance for the use of criminal history, shake it all up, and BAM!—you’ve got Ordinance No. 17-14. Here are the particulars:
Criminal Inquiry Restrictions
With respect to employment decisions, the ordinance prohibits the employer from asking the applicant about or requiring the disclosure of the following until after the first live interview (may be by phone or video conference) or after a conditional offer of employment has been made:
- An Arrest not leading to a Conviction, except under circumstances identified in this Section as an Unresolved Arrest,
- Participation in or completion of a diversion or a deferral of judgment program;
- A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative;
- A Conviction or any other determination or adjudication in the juvenile justice or information regarding a matter considered in or processed through the juvenile justice system;
- A Conviction that is more than seven years old, the date of Conviction being the date of sentencing;
- Information pertaining to an offense other than a felony or misdemeanor such as an infraction.
Prior to asking about the criminal history, an employer must provide the applicant with a copy of a written notice specified in Section 4905 of the ordinance. The employer is also required to post a copy of the proscribed notice in the workplace. This notice appears to be in addition to the authorization and disclosure required under the Fair Credit Reporting Act (FCRA) and (ICRAA).
If an employer wants to base an adverse decision on an applicant’s conviction history, and employer has to conduct an individualized assessment. The employer must:
- Consider only Directly-Related Convictions.
- Consider the time that has elapsed since the Conviction or Unresolved Arrest.
- Consider any evidence of inaccuracy
- Consider any evidence of Rehabilitation or Other Mitigating Factors
If an employer decides to reject an applicant because of criminal history, prior to taking the adverse action, the employer must provide notice in writing, including:
- A copy of the background check
- The intended adverse action and
- The items forming the basis for the action
The applicant then has seven days to respond (orally or in writing), and may provide evidence of inaccuracy, evidence of rehabilitation or other mitigating information. The employer must reconsider the adverse action, and respond to the applicant with a final decision, delaying any adverse action “for a reasonable amount of time.”
Upon reaching a final decision, the employer must “notify” the applicant, but the ordinance does not specify the manner of notification.
This law is bound to cause headaches for employers. The overlap with state and federal laws already on the books will need to be considered carefully. The need to keep applications open and delaying action for “a reasonable amount of time” is bound to cause confusion. The chosen means of notification and the additional record keeping is also up for interpretation. Employers must maintain records of employment, application forms and other relevant records for at least three years.
Violations of the Ordinance are punishable by payment of back pay, benefits and $50 per day for each day the Ordinance is violated, as well as attorneys’ fees and costs.
Employers everywhere need to be aware of ban the box laws, as they continue to sweep across the country at both the state and local level. See the related stories here on Target Corporation and other jurisdictions. And unfortunately, no two jurisdictions are exactly alike. We recommend talking to your legal counsel for advice on how to comply with this and other laws. Your screening provider is a good resource for administrative solutions. Stay tuned for more updates.
For those interested in staying up-to-date with the latest in compliance for pre-employment background screening and the laws that affect your use of employment background checks, follow our publication, BTW: Your Guide to Staying Out of Hot Water. This compliance resource has been created by our VP of Compliance and General Counsel, Angela Preston, and is a must-read for human resources and security professionals.
Our February issue of BTW features Avoid a Lawsuit: 5 Things Employers Should Know About the FCRA. Angela shares the five things employers must be aware of in their background screening program in order to avoid becoming one of many companies facing a lawsuit. Read More.
This issue also brings the story, State of Texas vs. the EEOC: Is Timing Everything? The state of Texas recently went after the EEOC for its guidance on criminal background checks, but the outcome has not proven successful. Read More.
Lastly, in response to several questions we receive on the EEOC Guidance, Angela provides answers for specific questions related to the guidance in this month’s Ask Angela response, Two Years Later: Questions on the EEOC Guidance.
Despite the two years that have passed since the EEOC clarified its guidance on the use of criminal background checks, there’s still a lot of confusion out there. I am hearing from many employers struggling with how to draft and implement a background screening policy that 1) protects their organization 2) is fair to job applicants, and 3) will stand up to an EEOC enforcement action. Below are a just a few of the questions that I’ve been hearing recently.
The Equal Employment Opportunity Commission (EEOC) says that the state of Texas needs to work on its timing. The agency has filed a motion to dismiss in the lawsuit that Texas brought against the EEOC late last year, claiming that the state has no right to sue and that the timing of the claims are premature. For those of you just tuning in, the entire State of Texas sued the EEOC last November, slamming the agency’s guidance on the use of criminal background checks. The case further ignited the firestorm of controversy that has surrounded the EEOC’s guidance since it was first issued in April of 2012.
The Texas Lawsuit
The state of Texas is not alone in its objection to the guidance. The agency has been aggressively targeting employers for disparate impact discrimination, and it recently filed high profile class actions against BMW and Dollar General Stores citing the guidance. Employers and courts have been critical of the agencies’ tactics, which have basically been sue first and sort it out later. In July of last year, nine states’ Attorneys General sent a complaint letter to the EEOC, calling their tactics “misguided and a quintessential example of gross federal overreach.”
The Texas suit takes the EEOC to task for stepping on the state’s toes and creating direct conflict with Texas laws that mandate criminal background checks. Both state agencies and private employers in Texas are prohibited from hiring convicted felons or certain types of ex-offenders for certain jobs—namely, jobs that require high levels of security and public trust. The state says that the EEOC’s guidance is harmful and could endanger public safety:
“If state agencies choose to comply with the EEOC’s interpretation, they not only violate state law, but also must begin evaluating and hiring felons to serve in law enforcement, teach in local elementary schools, nurse veterans and the disabled, counsel juvenile detainees, and coach little league.”
The Motion to Dismiss
In its Motion to Dismiss, the EEOC says that Texas got it all wrong. The brief cites 47 cases and starts out with six pages of background information–a sweeping tutorial on the agency’s long standing disdain for the use of criminal background information and disparate impact theory.
When it finally gets to the argument, there are three main points. The first argument is that the guidance is only “guidance.” As such, it has no legal effect. This is one of the standard responses that we hear from the EEOC—a response that conveniently creates an endless loop of circular logic, deflecting criticism by denying that it has any real authority. The agency lacks authority to issue substantive rules, therefore it has no ability to bind the plaintiff to any legal obligation. Tell that to Dollar General and BMW.
The second argument follows along the same line of reasoning—the state has no standing to sue, because it has suffered no real injury. The EEOC is saying the Texas’ claims are speculative, and there is no actual harm. Similarly, the third argument is ripeness–there has been no final agency action, and thus the claims are not ripe for litigation.
Procedurally, the EEOC is trying to stop this case dead in its tracks. The idea behind a motion to dismiss is that the claims made by the plaintiff are so lacking in merit that no answer is needed. The strategy here is to get the judge to agree that there is no reason to bother drafting an answer. There is a strong presumption against granting this type of motion, but at this point, it’s all up to the judge. Stay tuned on this one—we’ll keep you posted.
Let me officially be the last person to wish you a Happy New Year! I have to admit that I’m not a big fan of New Year’s resolutions. Why should you wait until January 1st to do something you should have been doing when you recognized a problem? Case in point, my least favorite New Year’s resolution is for those that vow to work out more. From February 15th through December 31st, there’s never a problem waiting for equipment at my gym. However, show up during the first 45 days of the year and a 45 minute workout turns into an hour and a half snore-fest. Don’t get me wrong. I’m all for getting into shape, but 45 days does not make a year.
All that said, I have a challenge for you (since I don’t believe in New Year’s resolutions:)). I strongly encourage all human resources professionals resolve to evaluate your company’s employment background screening program from top to bottom in 2014. The sooner, the better. And lest you think this is a sales pitch, it most definitely is not. What I am talking about is evaluation of your processes.
Top 10 Items to Consider When Evaluating Your Employment Background Screening Program
- When was the last time you evaluated your background screening policies and procedures?
- Are all incoming employees subject to an employment background check?
- Is the background screening criteria used relevant to the position you are hiring for?
- Have you clearly defined parameters for what information constitutes a non-hirable offense by position?
- Are you affected by the myriad “Ban the Box” Laws throughout the country which prohibit you from asking if the candidate has been convicted of a crime on the job application?
- If so, have you worked that question into a different part of the hiring process?
- Are you using the proper disclosure forms required by state and federal laws?
- Are you sure that you are following proper Adverse Action procedures when you deny employment based on the outcome of an employment background check?
- When was the last time you audited your background screening company for accuracy and compliance?
- Have you developed the proper procedures to comply with the EEOC requirement for individualized assessment?
Why Should You Care?
Not more than a month went by in 2013 when we didn’t see a marquee press release announcing a multi-million dollar suit being filed against an employer for allegations of violating the Fair Credit Reporting Act in conjunction with their employment background screening practices or discrimination in hiring practices for the same.
Whether these companies being sued are guilty or not, the cost to defend these allegations and the negative publicity surrounding these cases should be a big red flag for all. Class action attorneys have found a new target and they are circling like sharks. Most employers are doing things properly, but there has never been a better time to make sure that you brush up on your responsibilities when it comes to employment background checks.
It’s not often that we come out and say that we’re the best background screening company. However, there comes a time when we tell prospects and remind our clients of the reasons why our company is the best fit for them. This brief video offers an explanation from EmployeeScreenIQ’s background screening experts describing why we are favored by our clients and the reasons that few leave us.
Based on many years of client feedback, here are a few highlights that we believe set EmployeeScreenIQ apart:
Company Standards—We’re committed to a solid foundation of providing the highest quality and most accurate background check results.
Education—We’re committed to keeping our clients informed and up-to-date on the latest in the background screening industry including legislation related to the EEOC and FCRA.
Relationships—More than providing great customer service for our clients, EmployeeScreenIQ focuses on building a relationship with each and every client.
Longevity—EmployeeScreenIQ has been in business for nearly two decades. From the beginning we wanted to be an organization that was more than a service, but rather is more like an extension of our client’s businesses.
Attention to Detail—Clients know we are looking out for them–that their successes are our successes and their failures are our failures.
Retention—Plain and simple, our clients love us. With a 99.5% retention rate and over 3,000 clients, we’re proud to say that once someone is a client, they generally stick around.
Team Effort—Many clients say they were sold when they visited our office, met our employees, and clearly saw what EmployeeScreenIQ is about. As a team that truly cares about the end product our clients receive, we are committed to the “No Shortcuts” philosophy, meaning that we do not compromise quality for a faster turnaround time.
With a new year just around the corner, there’s no better way to move forward than to reflect on the events, challenges, and growth of the past year. Particularly for the background screening industry and HR professionals, it’s essential to learn from these stories to prepare for the challenges ahead in 2014. Some of our top stories include the misuse of employment background checks, the ban the box movement, and screening candidates on social media. Keep the lessons in these stories under consideration as you move forward with your background screening program in 2014.
The EEOC continued its crusade to fight discrimination by way of litigation against Dollar General and BMW. Take a closer look at the claims and what employers need to know. Read More
Texas is took on the EEOC claiming that the latest guidelines unlawfully limit the ability of employers to exclude convicted felons from employment. Read More
Charged with background screening violations in relation to adverse action notifications, employers need to be increasingly aware of compliance risks in 2014. Read More
If you missed our webinar this past Tuesday, you’re in luck—we have a complimentary recording available for download. We had an action-packed hour with veteran HR executives L. Gordon Paisley from United Airlines, Tammy Henry from Walmart and background screening experts Jason Morris, Angela Preston, and Nick Fishman from EmployeeScreenIQ. What is this webinar all about? Keep reading.
When a background check reveals that your job candidate has a criminal record, how do you respond? Company hiring practices have fallen under increased government scrutiny and it’s critical that you understand the implications of your actions – and have a proactive process in place to address these unique hiring situations.
To learn more, watch our recorded webinar, “My Candidate Has a Criminal Record. Now What?” This session will demonstrate the steps you must take when a candidate’s background check uncovers adverse information. In the webinar, we discuss important legal considerations and share practical advice for developing a safe and compliant hiring protocol.
This Webinar Addresses:
- Precautions to ensure their organization’s hiring practices are legally compliant with FCRA & EEOC requirements
- Essential considerations before making a hiring decision on a candidate with a criminal record
- Best practices for individualized assessments and adverse action
We would also like to invite you to take part in our 5th Annual Employment Background Screening Trends Survey. Take our survey and share your insights on some of the most talked-about issues shaping hiring practices and the background screening industry. The survey will take just a few minutes of your time and your feedback will help inform your professional peers. You will also receive a free executive summary of the results for your participation and be entered to win one of two $250 American Express gift cards!