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Cody Slaughter might have said a little too much at his interview for a position with the U.S. Customs and Border Protection when he openly admitted to sexually molesting a 2 year old girl when he was 14 years old as well as animals.  I’m guessing the interview all went downhill from there.

Before I start being a wise-donkey, I want to say that sexual molestation is no laughing matter and the comments I share below are in no way intended to make light of the situation.

That said, if all applicants were as truthful as Slaughter, there wouldn’t be a need for employee background checks or background screening companies for that matter.  Unfortunately, we live in a world where that just isn’t the norm.  There must have been something about Slaughter’s experience and qualifications that got him an interview.  Clearly, he looked good on paper.  At least we’ll give him a big A+ for honesty. Let’s also give U.S. Customs and Border Protection props for taking this information to the proper authorities.  If only Penn State University did the same thing.

 

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Last week Pennsylvania State University announced that it was launching a new pre-employment background screening program for all employees.  And because they are a public institution, they made the actual policy itself available to the public.

I have to commend them on many levels.  First, it is refreshing to see a major university taking the proper steps to protect its students, faculty, employees and itself from hiring those people who seek to harm them collectively whether it be through theft, dishonesty, violence, etc.  Universities whether public or not have become multi-national conglomerates and it’s time that they recognize it.

While many will say that they are only doing this because of the Jerry Sandusky scandal, I say, so what.  Good for them for learning from their mistakes.  I hope that other academic institutions will take note and follow suit.

Secondly, if you read their actual policy, they did a tremendous job of defining who will be subject to an employment background check (practically everyone), what screening criteria will be applied to each position, how the information will be used and how they intend to stay in compliance with state and federal laws as well as EEOC and FTC guidelines.

Any employer that conducts employee background checks and doesn’t have such a policy or hasn’t updated it for a while ought to take a few moments to review it.

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In March of this year, I had an opportunity to meet with representatives of the Federal Trade Commission (FTC) to get the pulse on their current enforcement focus, hear about their new privacy report , and to discuss trends in consumer background checks.  Social media sites and mobile applications were at the top of their agenda.

At the meeting we raised an interesting question—would the FTC consider social media “aggregator” sites and “metasearch’ engines, like Dogpile and Spokeo, consumer reporting agencies (CRAs) as defined by the Fair Credit Reporting Act (FCRA)? After all, when those sites are used by employers to look up potential applicants, the search engines are compiling reports for employment purposes, right? And they market their sites to businesses for this very purpose, right? On the other hand, you could look at the site as just a pass-through— software through which information passes. As we debated the issue, one of the FTC attorneys in our meeting commented that, taken to the extreme, one could argue that Google is a CRA. And we wouldn’t want that, would we?

The online search site Spokeo was faced with this very question in 2010, when it was hit with a double whammy–the Center for Democracy & Technology filed a complaint against the company with the FTC, and Virginia resident Thomas Robins filed suit against the company for allegedly violating the FCRA.  In the FTC complaint, the watchdog group claimed “Despite offering credit ratings and promoting the use of its services for employment decisions, Spokeo does not offer consumers any of the protections encoded in the Fair Credit Reporting Act as required by law.” Meanwhile, Robins alleged that Spokeo was acting as a CRA, reporting inaccurate information that was hindering his job search, and that he had no recourse or means to dispute the inaccurate information. CRAs are required to provide consumer protections like procedures to assure accuracy and dispute processes for consumers who find inaccuracies.

Spokeo countered that Robins had no proof of damages and that it is not a CRA, but merely a search engine. Last September, the judge dismissed the case, finding that “(t)he alleged harm to Plaintiff’s employment prospects is speculative, attenuated and implausible.”

Now Robins is back.  Earlier this week, Media Post reported that he has asked the 9th Circuit Court of Appeals to revive his case, arguing he does not need to prove damages under the FCRA since it provides for statutory damages, and that he can prove anxiety and stress.

And the FTC is still circling. The agency has not taken any public action against Spokeo, but they have asked Congress to consider new legislation to address so-called “data broker” web sites.  While sites like Spokeo typically say in their terms of service that users are not allowed to use the information for FCRA purposes like employment or credit, the FTC has repeatedly warned that attempts to avoid liability through the use of disclaimers won’t fly. In their Privacy Report issued earlier this year, the FTC calls for legislation that would give individuals more control over the information held by “brokers” making it easier to erase it or modify it.

As the FTC seems to be defining data brokers, the term applies to a very broad spectrum of businesses on the Internet.  Data brokers, the FTC report said, “Buy, compile and sell a wealth of highly personal information about consumers but never interact directly with them.”

Stu Ingis, a partner with Venable who represents the Digital Advertising Alliance recently had this to say:  “The FTC created a term that sounds nefarious. It’s fear-mongering. I’m not sure what they’re talking about. Data is the engine of the economy; it’s not a secret the online world is replicating [in] the offline data world.”

So what is a site like Spokeo? A CRA?  A data broker?  Neither? And what is a data broker anyway? Tell me what you think.

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The Department of Criminal Justice Information Services (DCJIS), the agency responsible for administering the Massachusetts CORI (Criminal Offender Record Information) statute, recently issued the final version of regulations.  Round two of the Massachusetts CORI reform legislation went into effect on May 4, 2012, changing who has authorized access to CORI and how CORI will be accessed.  With the new provisions, DCJIS has launched a new CORI request service online called ‘iCORI’ that will allow individuals and organizations to request and obtain Massachusetts criminal offender record information over the Internet.

Prior to the May 4th updates, private employers could only have access to CORI through a certification process.  Employers, volunteer organizations, landlords, and individuals can now request, pay for, and receive CORI online using the iCORI online service, but subject to new requirements and mandates.

Employers have “Standard Access” to CORI info on any criminal charges pending as of the date of the request; felony or misdemeanor convictions; convictions that have not been sealed; and any murder, manslaughter, and sex offenses. Certain employers who must comply with statutory, regulatory or accreditation requirements regarding employees’ criminal records will have “Required Access” to CORI for additional adult CORI information.

In many respects, the new regulations have spurred more questions than answers. Some of the questions we are hearing include what is actually covered by the new law, does it apply to all employers or just those in Massachusetts, and how do we resolve conflicts of law questions when the new regulations appear to conflict or require more restrictive policies than other statutes like the Fair Credit reporting Act? Many of those questions will need to be addressed in the courts or through legal opinions, but here are some take-aways.  This overview is by no means exhaustive.

•    Employers who conduct five or more criminal background investigations per year must have a CORI Policy. The policy must include that the employer will: (a) notify the applicant if a potentially adverse decision may be made based on the criminal record information; (b) provide the applicant a copy of the criminal record information obtained and a copy of the employer’s criminal record policy; and (c) provide information concerning the process for the applicant to correct his or her criminal record. DCJIS is required to maintain a model CORI policy at the DCJIS website.
•    While most of the provisions apply only to iCORI users, the regulations seem to indicate that new adverse action requirements and new requirements to provide candidates with a copy of the employer’s policy apply to all users of CORI.
•    CORI checks are permitted by a CRA only after a CORI Acknowledgement Form has been completed; and the CORI subject has signed an authorization from.
•    Employers must verify a subject’s identity if a criminal record is received from the DCJIS, and the information is to be closely compared with the information on the CORI Acknowledgement Form and any other identifying information provided by the applicant.
•     If the information in the CORI record provided does not exactly match the identification information provided by the applicant, a determination is to be made by an individual authorized to make such determinations based on a comparison of the CORI record and documents provided by the applicant.
•    An employer (or other decision-maker), must provide a copy of any criminal record information in the employer’s possession before questioning an applicant about his/her record. (§19)
•    When an adverse decision is made based on a criminal record, the employer (or other decision-maker) must give the applicant a copy of the record the decision is based on. (§19)
•    Where adverse action is contemplated based on the results of a criminal history background check (regardless of source), the applicant will be notified immediately, provided with the source(s) of the criminal history,  and given an opportunity to dispute the accuracy of the CORI record.
•    When adverse decisions are based on CORI, subjects shall be provided a copy of DCJIS’ Information Concerning the Process for Correcting a Criminal Record. See: http://www.mass.gov/eopss/docs/chsb/cori-process-correcting-criminal-record.pdf
•    CORI subjects have a right to inspect and obtain a copy of their own records. (§35)
•    Section 21 covers reporting rules of CORI for convictions, non-convictions, pending cases, and special cases for higher level offenses.
•    Both a ‘DCJIS Model CORI Policy’ available at http://www.mass.gov/eopss/docs/chsb/dcjis-model-cori-policy-may-2012.pdf  and  a ‘CORI Acknowledgment Form’ are made available.  The CORI Acknowledgement form is required of organizations using a Consumer Reporting Agency (CRA) for CORI criminal background checks: http://www.mass.gov/eopss/docs/chsb/fillable-cori-acknowledgment-form-organizations-using-a-cra.pdf
•    Reports may not be stored physically or electronically unless it is by a “decision maker,” creating a problem for CRA’s who are required to retain information to comply with provisions of the Fair Credit Reporting Act.

Items  EXCLUDED from the definition of CORI are the following:

o    information regarding criminal offenses or acts of delinquency committed by
any individual before  the individual attained the age of 17 unless the individual was adjudicated as an adult;
o    photographs, fingerprints, or other identifying data of an individual used for
investigative purposes, provided the individual is not identified;
o    evaluative information;
o    statistical and analytical reports and files in which individuals are not directly
or indirectly identifiable;
o    intelligence information;
o    information regarding any offenses which are not punishable by incarceration;
o    public records as defined in M.G.L. c. 4, § 7(26);
o    daily police logs;
o    decisions of the Parole Board;
o    published records of public court or administrative proceedings;
o    published records of public judicial, administrative, or legislative
proceedings;
o    federal criminal record information; and
o    Anything otherwise excluded by law.

If you conduct more than 5 criminal checks in the Commonwealth of Massachusetts per year, or if you are a CRA conducting criminal searches in Massachusetts, contact your legal counsel to determine what changes are required to your current processes and forms.  Violations are punishable by fines up to $5000, with additional penalties and potential criminal charges if the violations are found to be willful or criminal. The new CORI regulations are available here.

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Here’s a question for you: What would you do with an applicant who has a 37 year old open warrant for first degree murder? It sounds far-fetched, I know. But trust me, I didn’t make this up.  Meet Bobby Coley, 63, of Southeast Washington D.C.  Last week the Montgomery County, Virginia sheriff’s department confirmed the results of a commercial background check that uncovered the open warrant.

Coley was applying for a temporary position, which prompted the background check.  The background investigation turned up the warrant, and the temp agency instructed Coley to go to the Sheriff’s department to clear it up.  Without any further prompting, Coley voluntarily went to the sheriff’s office to take care of the open case, and was told it was for a first degree murder charge dating back to 1975.  “We weren’t finding anything, and so we finally looked in judicial case search and we actually saw that a warrant popped up under that name, Bobby Coley, and it said, ‘first-degree murder,’” Montgomery County Sheriff Darren Popkin said.

News agencies have reported the specifics of the 1975 case, ripped straight from an episode of Cold Case. The victim, Leopold Lynwood Chromak, disappeared on July 26, 1975. Two days later his wife contacted police and reported him missing. According to MSNBC, in 1984, a detective learned that the missing person case was actually a murder-for-hire, and that Chromak’s wife, Frances, had hired three men — Griffin, Smitty and Bobby Coley — to kill her husband. According to police documents, the woman said her husband was abusive and had beaten her. The three men allegedly smothered Chromak at Winexburg Manor Apartments in Silver Spring, Md., wrapped his body in a rug or carpet, took it to a van and dumped it along Central Avenue. His body was never found.

Coley was originally held by authorities, but ultimately released last week based on the lack of evidence.  Montgomery County has re-opened the investigation, but investigators will need to start from scratch. Mrs. Chromak has changed her name and disappeared, and the original anonymous informants are also long gone.

So back to Mr. Coley, and what to do about that open warrant.  Does a 37 year old, first degree murder conviction make Mr. Coley, who happens to be a member of a protected class, unemployable? I thought it would be interesting to apply the new EEOC guidance to this real life example.  While I don’t have all of the facts, just bear with me.  This is for illustration purposes only.  So here it goes:

For reasons we covered in last month’s BTW, the EEOC presumes that the use of any criminal history is potentially discriminatory, so the burden shifts immediately to an employer to defend the use of the information in their hiring process.  So the first step in using any criminal history information in an employment decision is to demonstrate job relatedness consistent with business necessity.  There are essentially two ways outlined in the guidance to do this. The first is with a validation study, which is, for all practical purposes, non-existent.  So we will go with the second method: conduct a targeted screen with a very tight nexus to the position, and a) apply the Green factors (nature of offense, time elapsed and nature of job).  For good measure,  b) conduct an individualized assessment, which, while not mandated by Title VII, is strongly advised.
The 63-year-old Coley has been in and out of federal custody on various charges since 1968. In fact, he was in the D.C. jail when the arrest warrant was filed in 1984. He wasn’t detained afterward and apparently never knew of the warrant. Applying the Green factors, let’s look at the nature of offense, time elapsed and nature of job.  We don’t know much about the nature of the job, other than it is temporary work.  Let’s assume it is an hourly position that does not involve public interaction, or exposure to children or the elderly, or any people, for that matter. So looking next at time elapsed, a significant amount of time has passed since the issuance of the warrant. 37 years is a long time. And recidivism studies show that the risk of a repeat offense reduces with the amount of time lapsed. So far, so good, for Mr. Coley.

Looking at the nature of the offense, we have a few issues to discuss. First of all, the offense we are looking at is an open warrant—not a conviction.  The guidance is pretty clear that arrests are not definitive, people are innocent until proven guilty, and certainly in this case, there is no evidence available due to the age of the case.  But it is an open case.  And the charge is First Degree Murder. It doesn’t get much more serious than that.

So in the spirit of the new guidance, we move on to the individualized assessment.  One next step would be to question Mr. Coley about the underlying facts surrounding the warrant. Let’s assume he denies everything. Do you believe him? The guidance allows for employers to make a decision based on the credibility of the candidate and the responses concerning the underlying conduct of the offense.  What about the other string of convictions alluded to above—the various charges since 1968, and the jail time served in 1984? Again, giving Mr. Coley the benefit of the doubt, if he last served time in 1984, 28 years ago, he was 35 years old.  And the studies show that the older an individual is at the conclusion of their last sentence, the less likely they are to re-offend. Has he completed any rehabilitation? Has he been successfully employed since his release?  Perhaps he has some character references that can vouch for him.

Do you hire Mr. Coley? Admittedly, I have played around with the facts here, but in most scenarios given the assumptions I have made here, the EEOC would say hire this fellow. Do you agree?

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It’s been a little over a month since the EEOC introduced new guidelines on the use of criminal records for employers and so far the general reaction we are hearing from the marketplace is confusion.  Some examples:

  • Do I need to remove the question that asks if the applicant has been convicted of a crime?
  • What is an individual assessment?
  • What kind of process and paperwork is this now going to require?

Well, we still don’t have any substantive answers, but we are keeping our ears and eyes open for interesting opinions on the subject.

Check out this essay written by Hans von Spakovsky of  The Heritage Foundation entitled, “The Dangerous Impact of Barring Criminal Background Checks: Congress Needs to Overrule the EEOC’s New Employment “Guidelines”.

Now, I’ll preface this by saying that the Heritage Foundation is definitely a conservative think tank and that I considered not posting this for that fact (that and Rush Limbaugh is on their home page).  However, this essay is being picked up by a number of media outlets throughout the country.  So, I’ll leave it up to you to determine if this is politically motivated or a genuine attempt to highlight a counter argument to the EEOC’s position (or both).

The author is a former counsel to the assistant attorney general for Civil Rights and the Department of Justice.  And his contention that the EEOC’s goal to eradicate a disparate impact on minorities in this regard could actually lead to overt discrimination is eerily similar to the warning issued by U.S. Civil Rights Commissioner, Peter Kirsanow.

I’m posting the abstract from the essay below.

Abstract: The EEOC’s new criminal background check “Enforcement Guidance” is potentially unlawful and certainly ill advised. In addition to lowering minority hiring rates and exposing employers to crushing liability, this new Guidance places employers in a vicious “Catch 22” situation: Business owners will have to choose between conducting criminal background checks and risking liability for supposedly violating Title VII or following the EEOC’s Guidance, abandoning background checks, and risking liability for criminal conduct by employees. Furthermore, failing to conduct such background checks places the public at risk, as violent offenders might go for years before lashing out at customers or co-workers. The U.S. House of Representatives and the Senate have already taken some actions to stop enforcement of this Guidance, but more is needed.

Read More

 

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When I was 7 years old, my parents packed me up and shipped me off to overnight camp.  It was the greatest thing that we could have done for each other.  I wasn’t always the angelic figure you’ve come to know, so I’m sure they were happy to be rid of me.  And for my part, I loved every single minute of it.  In fact, I enjoyed summer camp so much that I kept going until I officially retired as a counseler at the age of 21.

I still can’t get used to the fact that I don’t get to go any more, so this summer I’m doing the next best thing.  I’m sending my 10 year old to camp for 4 weeks.  And because you all know me, you know where I am going with this story.

In 1980, my first summer as a camper, camps didn’t conduct background checks on their employees.  It just wasn’t done.  It also wasn’t done my last summer at camp in 1993.  And unfortunately, for some camps around the U.S., that tradition has continued.

We posted a story back in March about a Palm Beach Post investigative report that revealed felons, including registered sex offenders not just working at, but in some cases running camps.  No background checks were required and none were done.  The state of Florida doesn’t mandate background checks for camp owners or employees.

But it’s not just Florida.  A couple weeks after we heard about that story, it was reported that the state of Arizona doesn’t require criminal background checks either.  We keep finding instances of states with a similar lack of oversight and unfortunately, we also continue to find horrific stories about child abuse as a result every summer.  If only the camp would have known about the employee’s past, many of these situations could be avoided.

So, if you are a parent like me and considering camp for your child, whether it’s day camp or overnight, please make sure you ask the camp if they perform background checks on their employees.  Find out what kind of background checks they conduct and how they monitor their staff.  Make sure you are comfortable with their response.

Because this is a cause that is near and dear to my heart, we have developed a number of relationships with camps across the country.  Thankfully, in most, if not all cases, they hadn’t turned to us because something bad happened to one of their charges.  They just knew that a statewide or national criminal database-only search wasn’t cutting the mustard.  At a minimum, camps should conduct a county criminal records check, a sex offender registry search and then, a national criminal database search.

Camp really is one of the greatest gifts you can give to your children.  Let’s make sure it’s an experience that they’ll treasure for the rest of their lives.

Oh, and make sure your kids know all the tricks they’ll need to know to survive such as, short-sheeting a bed, dipping an sleeping bunk mate’s hand in warm water, putting shaving cream on a sleeping camper’s hand and tickling their face so that hand goes to straight to the annoyance and SPLAT!!!!

Here’s a picture of my camp group from 1985.  Can you spot me?  I’ll give you one hint, I had hair back then.

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Screenshot of webinar

As you might know, we held a webinar last Friday about the new EEOC guidance on criminal records for employers.  We are now making the recording of the webinar available for download by clicking here.  The description of our session is listed bel0w.

Brace yourself, employers. The EEOC has been busy crafting new guidance that will affect the way you use criminal history in employment. On Wednesday, April 25th, the EEOC voted to approve the new Enforcement Guidance on the use of criminal records in employment, which will go into effect immediately. Changes are here!

Join EmployeeScreenIQ’s Angela Bosworth, JD and Nick Fishman for this special call-in update to review the changes to the guidance and understand what itmeans for you and your organization. Topics covered include: Topics covered include:

  • Comparison of the new guidance to the prior guidance
  • Bright line tests and limitations on number of years reviewed
  • State law issues and mandatory criminal checks
  • Open and pending cases
  • Rehabilitation and recidivism
  • Relevancy of information, job relatedness and best practices

Download the Webinar Recording

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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.


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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

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