… issue of By The Way we bring you an update on ban-the-box in the state of Indiana , another EEOC discrimination case, except instead of Dollar General & BMW this story focuses on transportation giant, J.B. Hunt . And lastly, Angela shares a “top 5” list of 5 Sticky Legal Situations Employers Should Avoid . Angela offers best practices in the five areas that employers are often confronted with in employment background checks–you won’t want to miss this month’s …
In an interesting turn of events, nine State Attorneys General are fighting back against the EEOC Criminal Record Guidance. These states include; West Virginia, Montana, Alabama, Nebraska, Colorado, South Carolina, Georgia, Utah and Kansas. It seems their reactions are directly tied to the Dollar General and BMW suits filed by the EEOC last month. The letter goes as far to say; “We believe that these lawsuits and your application of the law, as articulated through your enforcement guidance, are misguided and a quintessential example of gross federal overreach.”
I am actually surprised by this letter. I am surprised that ONLY nine states decided to participate. To me, one of the most troubling aspects of the new guidance is the safe harbor and preemption of federal statues that regulate what criminal records can and can’t be used. The guidance is pretty clear that this safe harbor only applies to federal mandates and excludes state law. What does this mean? Well if the federal law says you can’t hire someone with (insert example) record, you are safe, but if state law says you can’t hire someone with <Insert better example> you are left twisting in the wind! So ladies and gentleman, as far as the EEOC is concerned, you are damned if you do, and damned if you don’t. This, in my humble opinion, is the area all states should be screaming about! OK, end of rant, back to the letter…
As July is quietly coming to a close, it seems we are due for another Weekly Wrap Up. We’ve posted quite a bit in the past couple weeks, so here’s a recap for those who have been busy vacationing or were otherwise preoccupied. We officially released another video from our Quick Takes series, Is a Candidate’s Profile Picture Worth a Thousand Words? This video focuses on the use of social media screening in the hiring process. Find out what our panelists had to say about using this important tool for job candidates. At the end of last week, I shared a blog post regarding the use of resume verifications and advice for employers to ensure you find resume lies, when they are present on a job application. For more, read Liar, Liar. Are Job Seekers Hiring Professional Liars to Verify Resumes? Nick posted a useful guide to the top 10 advocates in our industry (as far as we’re aware), EmployeeScreenIQ’s List of Top 10 Employment Background Screening Advocates. Miss anything else? View our full blog site for more posts from your very own background screening experts.
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. Read More
As an employer, you may expect a few lies in the hundreds (or more) resumes you receive. These discrepancies may or may not be intentional — a forgotten end date of employment or job title is average to find on almost any resume. However, you might not expect for applicants to both blatantly lie on their resume and ensure that their lie is verified. It seems like a lot of work for someone who just wants a job offer. Or is it? Read More
Today’s employers are faced with a growing dilemma: whether or not to use social media to screen job candidates. The information you find on someone’s social media profile has the potential to make a profound impact on your hiring decision-whether it’s negative or positive. If you’re like many employers, you might be conflicted on whether to use these tools for background screening purposes. Angela, Nick and Jason discuss the potential risks and legal ramifications of social media screening. Read More
When it comes to hiring, the legal landscape is changing fast. Blow-your-hair-back, in-your-face, what-just-hit-me kind of fast. Hiring new employees is a process that has always involved legal risks. But the application, interview, and screening process is increasingly complicated for employers. So far, 2013 has been a banner year for litigation, legislation, and regulation. Recent developments at the local, state and national level make it difficult to keep up, even if keeping up is your full time job. Feeling overwhelmed? Don’t feel bad-this list of top 5 provides a quick recap of any legal changes you might have missed.
Here’s my list for the first half of 2013’s top 5 legal danger areas in hiring and background screening.
1. EEOC Guidance and the Use of Criminal Records
The EEOC published new guidance on the use of criminal background checks in April of 2012. The EEOC’s new guidance was an attempt to address its concern that criminal background checks have an unintended discriminatory impact on blacks and Hispanics. If anyone questioned how far the EEOC would take enforcement efforts, the question was answered in June of this year, when the Commission announced two major cases–a class action lawsuit against Dollar General and another major case against BMW. Both cases center on the companies’ use of criminal records to disqualify candidates.
The EEOC is aggressively pursuing and investigating suspected cases of disparate impact involving criminal backgrounds.
J.B. Hunt recently settled a similar claim with changes to their policies last month. Rather than living in fear and wondering if your company will be the next target, take a look at the new guidance, review your hiring policies and criteria for criminal history, and make sure that you are considering the long-established factors established in Green v. Missouri Pacific Railroad: the nature and gravity of the offense, the time that has passed since the conviction, and the nature of the job held or sought. Also take note of a new test in the guidance—an “individualized assessment”. The EEOC’s expectation of an individualized assessment creates an additional layer of review for employers who use criminal backgrounds as part of a routine background check. The details are tricky, and you can reference my prior posts on the recent cases and additional tips for compliance here.
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. [...]
Today’s employers are faced with a growing dilemma: whether or not to use social media to screen job candidates. The information you find on someone’s social media profile has the potential to make a profound impact on your hiring decision-whether it’s negative or positive. If you’re like many employers, you might be conflicted on whether to use these tools for background screening purposes. Angela, Nick and Jason discuss the potential risks and legal ramifications of social media screening.
This episode of the Quick Takes Series covers the possible risks of using social media in the background screening process as well as steps to take if you DO want to use social media in the hiring process.
So what’s against employers using social media for background checks?
- Angela shares concerns from the Federal Trade Commission (FTC) regarding employer’s misuse of the information they might find on social media.
- Jason points out that hiring managers have no way of verifying if the information found on social media truly belongs to their candidate.
- The information employers come across on social media might include protected class information (including but not limited to race, national origin, religion), as defined by the Equal Employment Opportunity Commission (EEOC).
Despite the hazards related to social media screening, there are potential benefits for employers as well.
For employers who want to use social media, our expert panelists offer valuable advice to ensure that companies won’t run into legal trouble:
- Does your company have a policy in place or a consistent hiring practice when it comes to social media?
- Employers should have trained personnel, separate from the hiring manager, who can weed out possible discriminatory information
- Will the candidate have a positive experience with your company if you utilize social media screening?
The bottom line for employers?
In the words of Nick Fishman, be careful.
Related EmployeeScreenIQ Content:
- The Risks & Rewards of Screening Job Candidates Through Social Media-Webinar
- 7 Do’s & Don’ts of Background Screening with Social Media-Article
- Check out other EmployeeScreenIQ blog posts for informational content on social media
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.
Since last week was a holiday week, I’m sure many were too busy participating in Fourth of July festivities to jump online and read our blog posts. Luckily for you, this is a recap to let you know exactly what you missed! Angela shared two posts last week, “Second Chance” in Indiana Part Deux: Law Restricts Use of Sealed and Expunged Criminal Records and J.B. Hunt Revises Its Policy After EEOC Race Discrimination Investigation. Nick shared an interesting post regarding court delays with criminal records, explaining why there are delays, and not only for holidays, but during other times as well. For more information, read Are We There Yet? Court Delays Slow Background Screening for Employers. What else is going on with EmployeeScreenIQ? One thing to keep your eyes open for is a post on the official release of the next Quick Takes video on Wednesday!
If this headline sounds like déjà vu all over again, we have blogged on this law several times, most recently here. The latest changes to the Indiana “Second Chance” law go into effect today, July 1, 2013, were brought about by Indiana House Enrolled Act No. 1482 (the “Act”), and signed into law by Governor Mike Pence in May 2013. Read More
Transportation giant J.B. Hunt Transport, Inc. has entered into a settlement with the U.S. Equal Employment Opportunity Commission (EEOC), over charges of racial discrimination based on a criminal background check. In a statement issued by the Commission, the EEOC claims that J.B. Hunt discriminated against an African-American job candidate who was denied a truck driver position at a J.B. Hunt facility in San Bernardino in 2009. Read More
Everyone’s favorite employment background checks are the ones which sail through the process with no hitches. No criminal records or any other adverse information to verify. And for the majority of employee background checks, that continues to be the norm. Read More
Transportation giant J.B. Hunt Transport, Inc. has entered into a settlement with the U.S. Equal Employment Opportunity Commission (EEOC), over charges of racial discrimination based on a criminal background check. In a statement issued by the Commission, the EEOC claims that J.B. Hunt discriminated against an African-American job candidate who was denied a truck driver position at a J.B. Hunt facility in San Bernardino in 2009. The agency claims that the company denied employment based on a criminal conviction record that was unrelated to the duties of the job. The alleged victim has entered into a private settlement agreement with J.B. Hunt.
In addition to the specific allegations in the San Bernardino incident, the EEOC investigated the company’s broad policies and warned against the use of blanket prohibitions that disqualify candidates with criminal records. The EEOC news release cites its policy guidance which was reissued on April 25, 2012.
With an abundance of blog articles since our last Weekly Wrap Up, it’s not easy to choose which stories to feature this week. Since the last time, EmployeeScreenIQ attended the 2013 Annual SHRM Conference in Chicago, June 16-18. Check out our recap, Background Checks, Apple TV’s and a Good Time: 2013 Annual SHRM Conference Recap–I promise you’ll feel like you were right there with us! This week we released the June issue of By The Way, our compliance newsletter. Find out what was featured in this month’s issue, June BTW: EEOC Targets Dollar General and BMW for Criminal Background Checks. Lastly, Nick penned a post regarding the ongoing debate of EEOC regulations vs. employer’s ability to conduct background checks, Are Employers Racist for Conducting Employment Background Checks? Find more stories on our blog page here.
After a few days of recuperating and catching up, it’s time to reflect on the 2013 Annual SHRM Conference. Chicago’s streets, particularly the areas surrounding the McCormick Place, were flooded with HR folks and exhibitors alike. If you were unable to attend, here’s a glance at some of the bustling activity of the show (mainly from our perspective, of course.) Read More
Our June By The Way issue features the recent EEOC case against Dollar General and BMW. As you’ve probably heard, the EEOC filed two lawsuits in federal courts in Illinois and South Carolina, accusing BMW and Dollar General of discriminatory use of criminal background checks. Other articles include, Stuck In the Middle: Title VII Conflicts with State Law in Ohio Federal Case and Jumping Aboard the “Ban” Wagon: Seattle, Buffalo and Minnesota Agree to Ban-the-Box. Read More
More than 90% of all employers conduct pre-employment background checks (according to the Census bureau there are nearly 14,000,000 businesses in the United States with employees). More than 2,000 background screening companies provide these checks to employers. Does that mean that we are all racists who discriminate against minorities if we conduct background checks? Read More
For those of you interested in keeping up with the latest in compliance for pre-employment background screening and the laws that affect your use of employee background checks, follow our publication, “BTW: Your Guide to Staying Out of Hot Water.” This compliance resource has been created by our VP of Compliance and General Counsel, Angela Preston and is a must-read for human resources and security professionals.
Our June By The Way issue features the recent EEOC case against Dollar General and BMW. As you’ve probably heard, the EEOC filed two lawsuits in federal courts in Illinois and South Carolina, accusing BMW and Dollar General of discriminatory use of criminal background checks. For more details, read Angela’s article, EEOC Targets Dollar General and BMW for Criminal Background Checks.
In the article, Stuck In the Middle: Title VII Conflicts with State Law in Ohio Federal Case, Angela discusses a conflict in an Ohio case where an employer followed the state law, but in doing so, violated Title VII of the Civil Rights Act. Last but not least, this issue includes an update on two cities and a state that have recently adopted ban-the-box legislation in Jumping Aboard the “Ban” Wagon: Seattle, Buffalo and Minnesota Agree to Ban-the-Box.