Please select a service to learn more:

Identity and Credit

Driver's Records

Criminal Records

References/Credentialing

Substance Abuse/Physicals

Global Solutions

Applicant Tracking

Solutions by Industry

Personal Background Checks

0

This great search was powered by Search Unleashed.
Help to remove this message by getting the site owner to support this software.

Tweet

Yesterday, a federal judge ruled that the state of Texas cannot challenge the U.S. Equal Employment Opportunity Commission’s (EEOC) guidance on criminal background checks because the state is not presently at risk of being penalized for refusing to adopt the policy. You might recall that this suit was filed last November by  Texas Attorney General Greg Abbott  …

Continue Reading

1

Nearly 600 human resources professionals opened up to EmployeeScreenIQ about how they use employment background checks to make hiring decisions and their candid feedback is detailed in our just-released, fifth annual survey of U.S. based employers. The new report looks at how companies manage the process of employment screening, their practices concerning Fair Credit Reporting Act (FCRA), Equal Opportunity Employment Commission (EEOC) guidance, candidates’ self-disclosure of criminal records and how they address adverse findings.

In the past few years, the EmployeeScreenIQ Trends Survey has become a benchmark many employers use to evaluate their background screening policies and practices. This year’s survey provides a unique cross-section of opinions and insights from an assortment of organizations and is a must-read for HR professionals that want to learn about what their industry peers are doing.

Today, we’d like to analyze how employers are adapting to the 2012 EEOC guidance on employers’ use of criminal background checks. [...]

Continue Reading

2

Earlier this week, the Sixth Court of Appeals affirmed a lower court ruling granting summary judgment to Kaplan in a high profile lawsuit brought by the Equal Employment Opportunity Commission (EEOC v. Kaplan Higher Education Corp.) over their use of employment credit reports. First and foremost, we want to congratulate our good friend Pam Devata and her colleague at Seyfarth Shaw who have done a wonderful job on this case since it was originally filed.

You might recall that the EEOC lost its case in the lower court because the research conducted by their expert witness (which concluded that credit reports have a disparate impact on minorities) was flawed. And without that research, the EEOC’s case fell apart. The judge basically indicated that without reliable statistical evidence of discrimination, the EEOC’s hard line enforcement doesn’t stand up in court.

This case is particularly important for those that conduct pre-employment credit reports as well as those concerned about the EEOC’s perspective on employment background checks.

Now, let’s dissect the ruling here. [...]

Continue Reading

7

Assessing the Impact of Criminal Background Checks

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.









Continue Reading

0

EEOC Guidelines Employment Background Checks

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.

[...]

Continue Reading

0

timinig is everything

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.

What’s Next

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.








Continue Reading

12

Background Checks in Texas

Earlier this week, Texas Attorney General Greg Abbott filed a legal action challenging the Equal Employment Opportunity Commission (EEOC) “enforcement guidance” that limits the use of criminal records during the hiring process. Texas is a big state, with a big reputation, so it’s fitting that this case is a big deal. The suit hits hard, claiming that EEOC guidelines unlawfully limit the ability of employers – including the State of Texas and its agencies–from excluding convicted felons from employment.

Texas Takes on the EEOC

The suit is the first direct challenge to the EEOC’s controversial criminal background enforcement guidance, which went into effect last April, 2012.  For those who follow EmployeeScreenIQ’s blog, the EEOC guidance on criminal background checks has been a frequent topic. Interestingly, Texas was not one of the states that joined in the recent letter to the EEOC from nine state Attorney’s General that protested the guidance. However, in a similar vein, the Texas complaint challenges the Commission’s statutory authority under Title VII to improperly “bully” the State and its agencies at the expense of the safety of Texans.

State of Texas Law vs. EEOC Guidance

The suit points out that under Texas law, both state agencies and private employers are prohibited from hiring convicted felons or certain types of ex-offenders for jobs that require high levels of security and public trust. The persuasive argument is that the EEOC’s guidance is harmful, damaging to both the state and private employers who are required to conduct background checks under state and federal law.

As the state’s legal action explains: “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.”

In the press conference, Abbott got political, saying this: “Once again, the Obama Administration is overreaching its legal authority by trying to impose hiring rules on states that violate state sovereignty and – in this instance – endanger public safety. Texas has an obligation to enforce its absolute ban on hiring convicted felons for certain jobs, including state troopers, school teachers, and jailers.”

The State of Texas is pushing back—taking issue with the EEOC’s approach of sue first and sort out later, which it says simply encourages disqualified applicants to file discrimination claims in situations where they are simply not qualified. Whether other states will jump into the fray remains to be seen.

The complaint itself asks the federal court for the following relief:

  • A declaratory judgment that the State of Texas and its agencies are entitled to maintain and enforce state laws and policies that absolutely bar convicted felons – or a certain category of convicted felons – from government employment;
  • A declaration that the EEOC cannot enforce its guidelines against the State of Texas – and an injunction that bars the EEOC from issuing right-to-sue letters to persons seeking to pursue this type of discrimination charge against the State of Texas or any of its agencies;
  • a judgment holding unlawful and setting aside the EEOC’s hiring guidelines.

I will be tracking this one closely—as will employers in Texas and across the US.

Continue Reading

2

You might recall that back in 2011 a federal judge ordered the Equal Employment Opportunity Commission (EEOC) to reimburse the staffing company, PeopleMark, for over $750,000 worth of legal fees and expert witness costs it incurred as a result of  overzealous prosecution tactics concerning their employment background check practices.

The premise of the case was the EEOC’s contention that PeopleMark automatically rejected candidates that had criminal records.  Even worse was that they ignored evidence that would have torpedoed their case. The EEOC put together a list of 286 applicants they said were denied employment based on PeopleMark’s blanket policy.  Evidently, they wouldn’t release the names of these applicants until they were compelled to do so by the court. When PeopleMark received the list, they discovered that 22% of these applicants with criminal records were actually hired.  They even notified the EEOC of this fact, yet the EEOC continued to pursue the case.

EEOC appealed the court’s ruling to the Sixth Circuit court and earlier this week [...]

Continue Reading

2

Since the Equal Employment Opportunity Commission (EEOC) introduced new guidelines in April of 2012, employers have had quite a bit of confusion about how this affects their use of employment background checks. With increased enforcement of these guidelines, employers should not only have a solid understanding of what they are, but also how to implement them into their hiring policy. EmployeeScreenIQ panelists, Nick, Jason, and Angela discuss the struggles related to the guidance and provide best practices to help employers remain compliant within the hiring process.

This episode of the Quick Takes Series covers the ever-popular, and ever-confusing topic of the latest guidelines from the EEOC.

For a recap, what are the requirements?

  • If a criminal background check is done on an applicant, the employer must consider job relatedness-for example, would the criminal record prevent the potential employee from performing the job well?
  • Each applicant should be provided an individual assessment. So if they do have a criminal record, essentially the employer must give them a chance to explain the criminal offense.

Nick also asks the pointed question, What if an employer doesn’t want to hire an applicant, regardless of their criminal record? Again, there’s no clear answer for this. The best option for employers is to have the best documentation possible, but know that this could still lead to an EEOC investigation.

In addition, Jason recommends being as transparent with the applicant as possible. While seemingly simple advice, giving the candidate as much insight as possible into the background screening process will provide a smooth process for both employers and the applicant. Additionally, companies should always, always speak with legal counsel regarding their hiring process and company policy.

The Bottom Line?

Employers, you must follow the guidance, but because the requirements are still somewhat confusing, consult your legal counsel.

Related EmployeeScreenIQ Content:

Quick Takes is a video series blending together bits of experience and expertise from EmployeeScreenIQ’s background screening experts. With a newsroom feel, discussions surround the latest issues in the background screening industry. All of the videos were filmed unscripted-giving you the opportunity to hear genuine responses from the professionals. Topics range from social media background checks to conducting a thorough criminal records search. We’re releasing a new video every month, so stay tuned.

 

Continue Reading

9

EEOC Employment Background Checks

Make sure to read the words in this word cloud carefully. “Laughable”. “Unreliable”. “Mind Boggling”.

Those are the words Judge Roger Titus of the U.S. District Court in Maryland used when he dismissed the Equal Employment Opportunity Commission’s (EEOC) case against Freeman Companies for what the commission alleged as discriminatory hiring practices related to Freeman’s use of criminal background checks and credit reports.  I’ve included a copy of Freeman’s press release for their take on the case because the EEOC didn’t see fit to allow them to respond when they announced “this egregious” case.

The outcome of this case is no surprise; so far the courts have not been swayed by the EEOC’s arguments in similar cases (see EEOC v Kaplan Higher Education).  What is shocking is that the EEOC has now suffered another embarrassing setback in their quest to punish employers for their reliance on employment background checks (see EEOC v PeopleMark).

Add the recent efforts of nine state Attorneys General who have taken the EEOC to task for what they deem to be misguided and an example of gross federal overreach for their lawsuits against BMW and Dollar General and you begin to see that the courts seem to be protecting employers’ responsible use of employment background checks.  I am hopeful that the EEOC will reassess their tactics and focus their energies on real instances of discrimination.

Seyfarth Shaw’s Pam Devata, Gerald Maatman Jr. and Howard Wexler did a remarkable job of explaining the judge’s ruling and the anticipated effect it will have on employers.  See below.

Court Dismisses EEOC’s Background Check Lawsuit Based On Its Reliance On “Laughable” And “Unreliable” Expert Report Filled Of “Errors and Analytical Fallacies”

In a scathing opinion issued today in EEOC v. Freeman,No. 09-CV-2573 (D. Md. Aug. 9, 2013), Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a nationwide pattern or practice lawsuit brought by the EEOC (previously discussed here and here) that alleged that Freeman, Inc., a service provider for corporate events, unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. This decision marks yet another blow to the EEOC’s use of systemic lawsuits to challenge employers’ reliance on background checks in making hiring decisions.

The Court’s Opinion

Prior to analyzing the EEOC’s disparate impact claim, Judge Titus discussed the utility of credit and criminal background checks, as well as the EEOC’s recent targeting of employers for such background checks, including the recent cases it filed against BMW and Dollar General Corp. In discussing these lawsuits, Judge Titus noted that:

“Because of the higher rate of incarceration of African-Americans than Caucasians, indiscriminate use of criminal history information might have the predictable result of excluding African-Americans at a higher rate than Caucasian. Indeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII.  However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions.”

Id. at 2. Turning to the specific case before him, Judge Titus focused on whether the EEOC provided the requisite evidentiary foundation that Freeman’s policies had a disparate impact based on reliable and accurate statistical analysis. Judge Titus held that the EEOC had not made such a showing and spent a majority of his 32-page ruling bashing the “expert” reports prepared by Dr. Kevin R. Murphy, the EEOC’s statistical expert. This is not the first time a U.S. District Court Judge has criticized the EEOC’s reliance on Dr. Murphy’s statistical analysis.  As previously reported here, Judge Patricia A. Gaughan of the U.S. District Court for the Northern District of Ohio granted summary judgment to the defense in EEOC v. Kaplan Higher Education Corp. (discussed here) – in part based on the “great concern” she had regarding several aspects of Dr. Murphy’s disparate impact analysis in that case.

Judge Titus pulled no punches in taking the EEOC to task based on the flaws in the data it relied upon in support of its disparate impact claims, labeling Dr. Murphy’s expert reports as:  “laughable”; “based on unreliable data”;  “rife with analytical error”; containing “a plethora of errors and analytical fallacies” and a “mind-boggling number of errors”; “completely unreliable”; “so full of material flaws that any evidence of disparate impact derived from an analysis of its contents must necessarily be disregarded”; “distorted”;  “both over and under inclusive”; “cherry-picked”; “worthless”; and “an egregious example of scientific dishonesty.” Id. at 14-20.

Given Dr. Murphy’s “continued pattern of producing a skewed database plagued by material fallacies” the EEOC left Judge Titus with “no choice but to entirely disregard his disparate impact analysis.” Id. at 24-25. Left without credible expert analysis, Judge Titus held that the EEOC’s case cannot survive as “it is sufficient for Defendants to point out the numerous fallacies in Murphy’s report, which raise the specter of unreliability” to defeat the EEOC’s prima facie case. Id. at 24.

Finally, Judge Titus held that even putting aside the unreliability of Dr. Murphy’s expert reports, the EEOC nonetheless failed to identify the specific policy or policies causing the alleged disparate impact and made “no effort to break down what is clearly a multi-faceted, multi-step policy.” As the EEOC could not demonstrate “which such factor is the alleged culprit” of the purported disparate impact, Judge Titus held that the EEOC failed to meets its prima facie case of discrimination. Id. at 25-28.

Implications for Employers

The defeat of the EEOC’s case is significant. Judge Titus’ decision is yet another favorable opinion for employers who fall victim to the EEOC’s “do as I say, not as I do” litigation tactics, especially in pattern or practice cases that rely heavily on the use of statistical analysis. While the criticism of Dr. Murphy’s statistical analysis is noteworthy given his use as an expert in many of the EEOC’s larger cases, an equally important take-away for employers is the fact that Judge Titus rejected the EEOC’s argument that it had no duty to identify the specific aspect of Freeman’s policies that caused the alleged disparate impact and could merely rely upon the policy in general in support of its claims – a tactic frequently advanced by the EEOC in these type of cases.

Given the magnitude of this decision, it is possible (if not likely) the EEOC will appeal Judge Titus’ decision, and we will keep you posted with any further updates regarding this important systematic case.

 

Continue Reading

All information contained on this website is provided by employeescreenIQ solely for the convenience of the site viewers. employeescreenIQ is not providing legal advice or counsel and nothing provided on this website or otherwise by employeescreenIQ should be deemed as legal guidance or advice. Users are solely responsible for complying with all local, state, and federal laws relating to the use of any information provided on this website and any information products provided by employeescreenIQ. Users should consult with their own legal counsel if they have questions regarding their legal responsibilities or any information provided by employeescreenIQ.