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I have taken a long hiatus from posting to our blog .  There are several reasons, time is one of them but mostly because of the wonderful bloggers we now have; Nick, Angela, Lauren and Kevin have done a great job!  Don’t ask Nick, he’ll tell you its because he is tired of correcting my horrible writing skills. (Shameless plug to the best editor and ghost writer we …

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EEOC vs. Dollar General & BMW

The EEOC continued its crusade to fight discrimination by way of litigation this week. The agency has filed two lawsuits in federal courts in Illinois and South Carolina, accusing BMW and Dollar General of discriminatory use of criminal background checks. These lawsuits open a new chapter in the continued debate over the use of criminal background checks in the hiring process. The commission is claiming that both companies have implemented criminal background screening policies that have the effect of discriminating against black applicants.

Background on the EEOC Guidance

These cases are the first significant cases to test the commission’s new guidance for the use of criminal background checks. The guidance, issued in April of 2012, has sparked controversy and confusion over when and how criminal background checks can and should be used. The guidance came out on the heels of some substantial settlements, including a $3.1M payout by Pepsi, based on the EEOC’s theory that certain policies, while neutral on their face, have the effect of discriminating against blacks and other minorities. The agency announced earlier this year that it would continue to focus on enforcement of the guidance, suing big employers for systemic discrimination by filing “disparate impact” cases. And true to their word, here are two new cases to test their theories.

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Social Media Employment Background Check

Last month, we released our official 2013 Employment Background Check Trends Survey report.  The report includes findings from nearly 1,000 Human Resources professionals in various industries across the United States, who responded to our survey on background checks for employment at the end of 2012 and the beginning of 2013.

Anyone who has followed this blog knows that we’ve dedicated a lot of time over the last 12 months discussing the Equal Employment Opportunity Commission’s new guidance to employers on the use of criminal background checks.  So, as the one year anniversary of this legislation (I mean guidance:)) is upon us, I thought we could review how our survey respondents characterized their knowledge of the guidance and how their companies have responded.

The new EEOC guidance on criminal background checks (released April 2012) has caused my organization to:

EEOC Guidance on Criminal Background Checks

April 2012 EEOC Guidance

 

 

 

 

 

 

 

Of the nearly 70% of respondents who said that their organizations have reviewed the EEOC guidance on criminal background checks, slightly more than half of them have not made changes to their pre-employment background screening policies based on that guidance, while slightly less than half have made changes. More noteworthy, however, is the 32% of respondents who either aren’t familiar with or haven’t reviewed the EEOC’s guidance.

Last week, I was fortunate enough to hear the one EEOC commissioner who dissented from the guidance, Constance Barker, speak about what what we’ve learned about the new guidance over the past year.  My colleague Angela Preston, wrote the following about Commissioner Barker’s remarks:

A year has passed, and little has changed. Barker made it clear that the EEOC is still very committed to increased enforcement, and will continue to pursue “systemic” cases, where a pattern or practice has a broad impact on a large population though disparate impact theory.  As she put it, the EEOC criminal guidance starts with the premise that, if you are conducting criminal background checks, there is presumption that you are discriminating. Until this premise has been successfully challenged in court, employers need to be prepared to defend class action suits.

 But it’s only guidance, right? The EEOC, by design, does not have authority to write rules or regulations.  But as Barker pointed out, until a court says it will not apply the guidance, the guidance has the effect of a regulation. And once a court is persuaded by and cites to the guidance, it becomes law. We knew it would take some time for the guidance to be addressed by the courts, and we are still waiting for pending litigation to shed some light on the effect of the guidance.

We would strongly encourage employers to familiarize themselves with the new guidance and evaluate their organizations’ policies and practices.

 

Download Complete Survey

 

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EEOC criminal background check

Nick, Jason and I were in Washington DC last week, just in time for some summer weather and a chance to see the last of the cherry blossoms. We were attending the National Association of Professional Background Screeners (NAPBS) Mid-Year 2013 Legislative Conference, a gathering of about 350 companies and clients taking our message about background checks to the Hill.  We had the opportunity to hear from Equal Opportunity Employment Commissioner Constance Barker, the only Commissioner who voted no on last’s year’s EEOC guidance on the use of criminal background checks in employment.

Barker had warned last April that “the only real impact the new Guidance will have will be to scare business owners from ever conducting criminal background checks. . . . The Guidance tells them that they are taking a tremendous risk if they do.”

A year has passed, and little has changed. Barker made it clear that the EEOC is still very committed to increased enforcement, and will continue to pursue “systemic” cases, where a pattern or practice has a broad impact on a large population though disparate impact theory.  As she put it, the EEOC criminal guidance starts with the premise that, if you are conducting criminal background checks, there is presumption that you are discriminating. Until this premise has been successfully challenged in court, employers need to be prepared to defend class action suits.    

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Criminal Background Checks

As you know, background screening companies have been pretty critical of the EEOC’s new guidelines on employers’ use of criminal background checks because we think they inhibit their ability to hire qualified candidates.  The guidance has created an unfair burden on employers and makes them have to choose between relaxing their employment background check policies which could hinder their ability to protect themselves or face an investigation from their friendly EEOC enforcement officer.

Well, U.S. Civil Rights Commissioner Peter Kirsanow and and Commission Special Assistant Carissa Mulder not only take exception to the guidance [...]

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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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It has been seven months since the EEOC issued new guidance on employers’ use of criminal background checks. There has been quite a bit of information released since then and we wanted to take a few moments to share some of the feedback we’ve received from our clients since May. See also our blog post and webinar on the topic.

We’re hearing that the EEOC guidelines on criminal records have caused tremendous confusion among our clients.  There are three main areas that are causing the most confusion. First, the EEOC recommends as a best practice that employers abolish the job application question that asks if the person has been convicted of a crime.  This recommendation is not feasible for many employers who have bona fide job qualifications that require exclusions based on certain types of crimes. Employers are understandably confused about when they can and should ask about criminal history and request a background check. Delaying the question can cause both the employer and the candidate to invest heavily in an opportunity or even quit their job only to be disqualified later in the process.

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What are labor and employment attorneys around the country advising their clients to do when it comes to complying with the revised EEOC guidelines for employers who conduct criminal background checks (issued in April 2012)?  Judy Greenwald from the Crains’ publication, Business Insurance, polled some of the nation’s leading experts on employment background check laws in her article, “Employers advised against automatic hiring ban on people with criminal backgrounds”.

Substantive advice has been hard to come by since the guidance was first released, so we definitely think employers should take a minute to review the highlights below.

  • “The one thing the policy should definitely state is that there is no automatic ban” for an applicant with a criminal conviction, said Amy L. Bess, a shareholder with law firm Vedder Price L.L.P. in New York.
  • Pamela Q. Devata, a partner with law firm Seyfarth Shaw L.L.P. in Chicago, said she recommends employers remove any questions about criminal history from their application forms altogether and move it to a later stage, such as after the job interview or upon a conditional offer of employment.
  • Michael A. Warner Jr., a partner with law firm Franczek Radelet P.C. in Chicago, said, “I would also document in your policies why certain convictions, certain types of criminal history” would disqualify a job applicant, he said.
  • “Try to make sure there’s a connection between a demonstrable job requirement, and any restrictions that (the employers) are putting in place with respect to criminal history,” said Marc A. Mandelman, senior counsel with law firm Proskauer Rose L.L.P. in New York.

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Since the Equal Employment Opportunity Commission introduced their guidelines on employers’ use of criminal background checks back in April, I’ve taken a wait and see approach.  Sure, I’ve been concerned about the fact that the guidance wasn’t really clear in certain areas: Should employers remove the question that asks an applicant to provide information on past convictions? How exactly is a company supposed to conduct and individualized assessment? What does the EEOC mean when they say that there will be certain jobs that clearly won’t be able to hire those with particular offenses?

I wanted to believe them when they said that these guidelines are simply a continuation of the policies that were already in place.  Well, after seeing the following quote in the Human Resources Journal, I’m getting a little concerned that might not be the case.  See below.

“If companies ask job applicants about their criminal histories they could face discrimination lawsuits. John Hendrickson, the regional attorney for the EEOC’s Chicago district said, ‘I would suggest to (businesses) that they think long and hard about why they think they need to do a criminal background check,’ insinuating that if they felt it was not required, they’d be safer not doing it.”

So, here are a few questions I’d like to know the answer to.

  • Does the EEOC has a list of positions they believe should be exempt from employee background checks?
    • If so, how is the EEOC an authority on determining a company’s vulnerabilities?
    • If they don’t have this list, aren’t they just setting up employers for failure?
  • Will the EEOC testify in court on behalf of an employer that decided not to conduct an employment background check when they get sued for hiring someone whose past criminal record could have suggested they might be a danger to persons or property?
    • Will they assume any liability caused to these businesses?
  • Will the EEOC make restitution to those harmed by these people?

I think the EEOC ought to look at the legislation Ohio State Senator Shirley Smith just passed last month.  Instead of punishing employers for conducting background checks, she’s initiated a program which allows those with convictions to apply for a certificate of employability.  And in the event a person with such a certificate engages in criminal activity in the workplace, it offers the employer insulation from law suits.  This approach comes much closer to aligning interests of employers and people with criminal records.

 

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According to Dollar General’s recent SEC filings, the company is likely to be sued by the Equal Employment Opportunity Commission (EEOC) for their employee criminal background check practices.

I wasn’t able to find much information on this, but the Nashville Business Journal reported that EEOC alleges that the company’s criminal background check policy has a “disparate impact” black job candidates and employees, a violation of the Civil Rights Act of 1964.

According to the article, the EEOC believes that Dollar General “excludes from employment individuals with certain criminal convictions for specified periods’”.

The company was notified about the allegations in September of last year, but efforts to resolve the matter through a conciliation process were unsuccessful.

It is impossible to tell from the limited information we have about the merits of this case or lack thereof.  We’ll continue to follow this and pass on details as they become available.

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