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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 …

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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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If you’re a regular here in the EmployeeScreenIQ lounge, you know we’ve been closely following the EEOC case against Freeman Companies (filed in 2009) which alleges that their practice of denying employment based on one criminal charge or conviction and, or credit history is discriminatory.

In the latest development, Freeman asked the court to compel EEOC to produce their guidelines on how they use criminal background checks and credit reports as part of the employee background check process.  This was a similar request to the one made in the EEOC v. Kaplan Hire Education Corporation case.  EEOC argued that their policies and practices were irrelevant to the case and that the request was overly burdensome to the agency.

And just as another district court ruled in favor of the Kaplan request in May, they too ruled in favor of Freeman Companies.

According to Bloomberg BNA,  “Denying EEOC’s motion for a protective order, the court said defendant Freeman, a corporate events planner—also known as TFC Holding Co.—that EEOC alleges has engaged in a “pattern or practice” of discrimination against black, Hispanic, and male job applicants, may compel EEOC officials to testify about the agency’s own practices regarding use of criminal background checks or credit histories in hiring for government jobs.

EEOC argued that despite the broad discovery permitted under the Federal Rules of Civil Procedure, a protective order is appropriate because the proposed deposition would not seek information relevant to any claim or defense advanced by Freeman.

But U.S. Magistrate Judge Charles B. Day found that the deposition could produce information relevant to Freeman’s defense that its consideration of applicants’ criminal backgrounds and credit histories is job-related and consistent with business necessity.

‘[I]f [EEOC] uses hiring practices similar to those used by [Freeman], this fact may show the appropriateness of those practices, particularly because [EEOC] is the agency fighting unfair hiring practices,’ Day wrote.

The discovery conducted so far indicates that EEOC and Freeman “consider similar factors” in evaluating job applicants with criminal backgrounds, including the nature of the criminal offense, the seriousness of the conduct, and the particular job to be filled, the court added.

‘[EEOC]‘s practices therefore are reasonably calculated to lead to the discovery of admissible evidence, even if those practices eventually may not be admissible at trial or ultimately dispositive to showing whether [Freeman] violated the law,’ the court said. ‘Further, [Freeman] is not required to accept [EEOC]‘s position in its briefs that the two entities’ practices are dissimilar—[Freeman] is entitled to discovery on this issue as it relates to [Freeman]‘s defense.’”

It seems to me that EEOC is being hypocritical in not readily sharing their pre-employment background screening policies.  After all, if their policies allow for the same hiring practices as Freeman employs, how can they make the argument for discriminatory practices?  I made the same argument this past Spring when EEOC published their new employment background check guidelines but exempted the federal government from compliance.

Here’s the thing: I wouldn’t blame EEOC for maintaining strict background screening guidelines.  They have to protect themselves from those who pose a threat to their mission.  However, I’d make the same argument for all employers.

Here’s a copy of the ruling.

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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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