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Brrrrr it’s cold . . . and snowy . . . and icy!!!! No, this isn’t my way of forcing uncomfortable chitchat while we wait for a conference call to start. I actually have a point here.

The Winter of 2014 is wreaking havoc on employment background checks. More specifically, the winter weather has caused more courts to close in more jurisdictions across the country than I ever remember. And when the courts close, that delays criminal background checks. It seems like everyday I am receiving notices from multiple courts indicating that they are closed due to weather. Just within the last couple weeks, we were notified that all courts in the Kansas City area were closed as well as throughout the state of Missouri, Kansas, Connecticut, Indiana, Illinois, Maryland, Massachusetts, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Tennessee (parts of), Virginia, Washington, D.C., West Virginia, and Kentucky.

Even those in the Southeast portion of the country aren’t immune to this winter’s inclement weather. Last week, courts throughout the state of Alabama were closed due to winter storms and though I haven’t yet received any notifications today, I’d be shocked if the courts are open in North Carolina and Georgia.

Other Than Building A Snowman, What Can You Do?

Unfortunately, the short answer to this question is all that you can do is wait.

Twiddling your thumbs isn’t for you?  Here are a few words of advice.

  • If you are requesting employment background checks in any of the affected areas, it is important to be prepared for how you might handle these delays. Do you need to postpone start dates? Should you be reaching out to the candidate so that they don’t feel like they are twisting in the wind? Is the start date so important that you might be willing to allow them to begin working while the background check is still processing? (For the record, I really don’t like this option).
  • The good news is that most of these courts only close for a day or two at most, so hopefully that won’t affect a candidate’s start date. However, when delays do occur, it is important not to deviate from your company’s safety and security policies. Any good background screening company will keep you informed about these delays so that you can plan accordingly.
  • Further, just because your criminal background check is delayed shouldn’t mean that the other elements of your background check will be. Things like Motor Vehicle Records, Credit Reports, National Criminal Database checks, Employment and Education Verifications should still proceed as usual. It is okay to review these results, just don’t make your final hiring decision until the all of the information (including the criminal background check) is complete.



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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 [...]

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Background Checks for Airlines

At a cruising altitude of 30,000 feet, airline passengers want to rest easy knowing that they are in good hands and will safely make it to their destination. They trust the airline they have chosen is taking all precautions to make sure that happens from the way they maintain their aircraft to the training of their employees.

As any human resource professional in the airline industry knows, employment background checks are an essential piece of this puzzle. And we all know that it’s not just the employees that are up in the air with passengers. There are mechanics (who should have an up-to-date license), the baggage handlers (do they have sticky fingers), the customer service personnel (have they exhibited violent and threatening behavior in the past) and just as importantly, the contractors, including food service vendors (they should be subjected to the same screening criteria as direct employees.)

And if your airline’s stringent background check requirements weren’t enough, you also have to consider federal screening guidelines from agencies such as Federal Aviation Administration (FAA), Department of Transportation (DOT) and Homeland Security–to name a few. [...]

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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.

 

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Top 10 Employment Background Screening Advocates

It’s no secret that the employment background screening industry has been under intense scrutiny over the past few years from revised EEOC guidance on employers’ use of criminal records, to fines for Fair Credit Reporting Act violations, to myriad states creation of “Ban the Box” laws.  And while we support actions that hold our industry and employers accountable for complying with these laws and maintaining the highest ethical standards, we also think that the employer’s we represent should be praised for the work they do to keep our nation’s workplaces safe.

We think that we do a decent job of advocating on behalf of our industry and the need for employee background checks and celebrating the incredible work done both by background screening companies and employers.  However, every industry needs a group of committed, unbiased advocates to champion its causes.  Therefore, I’m happy to present to you our list of the top employment background check advocates that promote responsible background screening practices and tirelessly defend employers’ use of employment background check. [...]

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Employment Background Screening Negligent Hiring

Here’s a real head-scratcher. Imagine that you are an employer (lol, if you’re reading this blog, you probably are), and you get the following criminal rap sheet on a prospective employee.

• Failure to obey a traffic signal, 2007
• Speeding, 2009
• Failure to pay attention, 2012
• Failure to obey a highway sign, 2012
• Tampering with a vehicle, 2011
• Speeding, 2007
• Failure to wear seat belt, 2007
• Failure to pay full time and attention, 2010
• Speeding, 2011
• Failure to obey a traffic signal, 2013
• Violation of good behavior on a misdemeanor offense
• Illegal sale of unapproved equipment
• Misdemeanor assault, 2011 [...]

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Credit Reports in Employment Background Checks

Our friend Pam Devata at Seyfarth & Shaw blogged yesterday that Colorado became the ninth state to prohibit the use of employment credit reports in hiring. As Pam reports, Colorado’s law will prohibit employers from using “consumer credit information” for employment purposes.

Colorado joins eight other states–California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington—in restricting access to consumer credit in the hiring process. The rational for the state action is summarized in the bill’s introduction: [...]

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employment credit reports

Strike up the band, pop the champagne and raise the roof!!!!  You can’t see me right now, but I’m doing my happy dance.

For the past 2 years we’ve chronicled the EEOC’s case against Kaplan Higher Education in which they alleged that Kaplan’s use of employment credit reports constituted a discriminatory hiring practice.  Today, I’m happy to share that a motion for summary judgment has granted in Kaplan’s behalf and the case has been tossed. [...]

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I have a confession to make.  I’ve looked back on all of my blog posts from this past year and I’ve noticed a disturbing trend: I’m angry.  Angry at the the EEOC for introducing new criminal background check guidelines which I believe are unclear and unfair to employers.  Angry at fellow background screening companies when they don’t do everything in their power to ensure accurate employee background checks and for giving those that are against what we do fodder to oppose us.  And angry at organizations that fail to perform proper due diligence on prospective employees, especially those working with children.  I suppose someone could have staged an intervention when I started using the photo above on some of my posts or added “Rants” as a blog category (which is what I’m categorizing this blog as).

Why am I so angry?   [...]

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You can’t be too careful when it comes to employee background checks these days. Just yesterday, The Onion reported that a PetSmart background check gave a gerbil their stamp of approval with a clean record. Shortly after it was sold to its Los Angeles family, it became immediately apparent that this gerbil was not fit to live in a home. His behaviors included hoarding pellets, maniacally shredding wood chips, and hiding in dark holes, according to the family. This mishap is clearly the result of a faulty background check. [...]

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