Category: Background Checks
The Obama administration is getting pushed back in the courts. This time in the case of EEOC v. Freeman. The overly aggressive political stances of the EEOC and NLRB are taking a toll on employer sanity and the courts are beginning to call the administration on its non-sense. The judge in this case responded to the political agenda with a legal one. Basically that there are no facts to support the position that these background checks are not done for legitimate reasons, but for discriminatory ones. Even where they may be a disparate impact in result. I’ll be very curious to see where the case evolves from here. Someday we will have an administration that once again rewards those who act responsibly, without blame or justification. That day can’t come soon enough.
As stated by the Court:
“For many employers, conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process. The reasons for conducting such checks are obvious. Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable…. “While some specific uses of criminal and credit background checks may be discriminatory and violate the provision of Title VII, the EEOC bears the burden of supplying reliable expert testimony and statistical analysis that demonstrates disparate impact stemming from a specific employment practice before such a violation can be found. For the reasons explained below, the EEOC has failed to do so in this case.”
I suggest any business leader or HR executive read this very insightful opinion. One reason is that the process the company followed in managing this challenge was laudatory. In a sense the EEOC picked on the wrong company.
As I often say in workshops “it takes only one felon to ruin your day.” Worklaw® partner firm Lehr Middlebrooks and Vreeland, P.C. provides this cautionary note about doing background checks:
Several states and the EEOC have focused on employer use of financial and criminal background information. This national focus has caused some employers either to discontinue the use of background checks or become exceedingly cautious when conducting them. The recent lawsuit of Keen v. Miller Envtl. Grp. Inc. (5th Cir., Dec. 10, 2012) is an example of what may occur if an employer does not conduct a criminal background check. Miller was part of the Gulf Coast Deepwater Horizon cleanup. Aerotek, Inc. provided temporary employees to Miller to assist with the cleanup. Aerotek employee Keen alleged that she was raped by Aerotek employee Robertson. Aerotek and Miller did not conduct a background check. Had they done so, it would have shown that Robertson was convicted for robbery, cruelty to a child and contributing to the delinquency of a minor. It would have shown that Robertson was designated as a sex offender and should have registered. The background check would have also shown Robertson’s arrests for battery, sexual battery, forcible rape and firstdegree murder. Keen asserted that Miller and Aerotek had a duty to conduct a background check and were negligent for failing to do so.
The case arose out of Mississippi. The court stated that Mississippi law requires an employer “to exercise reasonable diligence to ascertain the competency of a prospective employee.” The court observed that there is nothing in the work that Keen and Robertson were hired to perform that necessitated a criminal background check—they were hired to pick up tar balls along the beach. The court said, “If a criminal background check were necessary to screen for indicia that a manual laborer might assault a co-worker, it is difficult to envision a fact pattern in which a background check would not be necessary. Of course, the unanimous case law from around the country says that there is no such generalized duty on employers, to conduct pre-employment background checks on all new hires, irrespective of the particular circumstances of their prospective employments.”
A duty to conduct a background check arises where others may be vulnerable to the employee due to the work environment, such as healthcare, home services and working at an isolated or secluded location. However, employers using temporary services even where those unique workplace situations do not apply may want to consider the requirement that a temporary service conduct a criminal background check of those employees it refers.
As always we refer you to www.globalhrreserach.com to make sure your backgrounds checks are done right!
On April 25, 2012, the EEOC issued updated Enforcement Guidance regarding an employer’s use of arrest and conviction records in making employment decisions. The agency also issued a Question and Answer (Q&A) document that helps explain the Guidance.
According to the EEOC, a policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law. The Enforcement Guidance explains how the EEOC analyzes the “job related and consistent with business necessity” standard for adverse employment hiring decisions based on criminal records, and provides hypothetical examples interpreting the standard.
Arrests and convictions are treated differently for purposes of Title VII, since the fact of an arrest does not establish that criminal conduct has occurred. The EEOC acknowledges that an arrest may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. The Guidance notes, “[a]lthough an arrest standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.”
In examining whether an employer’s policy of screening individuals based on criminal convictions violates Title VII, the EEOC will look to see whether the employer’s policy provides an opportunity for an individualized assessment for those people identified by the screen in order to determine if the policy as applied is job related and consistent with business necessity. Under the new enforcement rules, the following should be considered by an employer when screening based on criminal convictions:
• The Nature and Gravity of the Offense or Conduct. The Guidance notes: “Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). … With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.”
• The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence. The Guidance points out that the amount of time that had passed since the applicant’s criminal conduct occurred is probative of the risk he poses in the position in question. For example, the Guidance notes that the risk of recidivism may decline over a certain period of time.
• The Nature of the Job Held or Sought. Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”
The Guidance also lists examples of employer best practices for considering criminal records in connection with employment decisions. Among other examples, the Guidance advises employers to (1) develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct, (2) identify essential job requirements and the actual circumstances under which the jobs are performed, (3) determine the specific offenses that may demonstrate unfitness for performing such jobs, (4) determine the duration of exclusions for criminal conduct based on all available evidence, and (5) record the justification for the policy and procedures.
Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).
Today, the Equal Employment Opportunity Commission (EEOC) released the first updates in nearly 25 years to its guidelines on when and how employers may inquire into an applicant’s arrest and conviction history. According to the EEOC, the new Guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders. Our preliminary analysis confirms that the Guidelines do not appear to represent a fundamental shift in the EEOC’s positions, but rather summarize pre-existing guidelines and principles based on applicable case law and available demographic research.
The EEOC’s Updated Guidance
No federal law explicitly prohibits employers from so inquiring into an applicant’s past criminal history, however, court decisions and EEOC guidelines have previously recognized that, in some cases, disqualifying an applicant because of an arrest or conviction record could violate the Civil Rights Act of 1964, as amended (Title VII), which prohibits employment discrimination based upon race, color, religion, sex and national origin. The updated Guidance notes that the use of criminal history may violate Title VII in one of two ways. First, Title VII may be violated when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (i.e., disparate treatment liability). Second, a violation may occur where an employer’s facially neutral policy of excluding applicants from employment based on criminal history disproportionately impacts African American and/or Hispanic applicants and is not job related and consistent with business necessity (i.e., disparate impact liability).
The Guidance distinguishes between the use of arrest and conviction records. According to the EEOC, an employer’s reliance on an arrest record in and of itself is not job related and consistent with business necessity because the fact of an arrest does not establish that criminal conduct has occurred. However, an employer may make an employment decision based on the conduct underlying an arrest if that conduct makes the individual unfit for the position in question. The EEOC further recognizes that a conviction record in most cases will usually serve as sufficient evidence that an individual engaged in particular conduct, but notes that in certain circumstances there may be reasons why an employer should not rely on a conviction record alone.
The Guidance cites to nationwide statistical data showing that African American and Hispanic individuals are arrested and convicted at a rate 2 to 3 times their proportion of the general population and states that this nationwide data provides a basis for EEOC to investigate an employer’s use of criminal records. During an investigation, the EEOC will look to whether the particular employer’s use of criminal history has a statistically significant disparate impact on any protected group.
Once a disproportionate impact is shown, the employer may only avoid liability if it can show that the reliance on criminal history is job related and consistent with business necessity. The revised Guidance sets out two circumstances in which the EEOC believes employers will consistently meet this defense:
- The employer validates the criminal conduct exclusion for the position in question under the EEOC Uniform Guidelines on Employee Selection Procedures; or
- The employer develops a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job. The employer’s policy must also provide an opportunity for an individualized assessment of those people identified by the screen to determine if the policy as applied is job related and consistent with business necessity.
As to the first defense, the Guidance recognizes that in most cases this will not be a viable option because of the lack of currently available studies that could provide a framework for formal validation. For the second defense, the Guidance notes that while an “individualized assessment” is not required under Title VII under all circumstances, the lack of an individualized assessment is more likely to result in a violation.
Best Practices Identified by the EEOC
The Guidance provides several examples of best practices for employers who consider criminal record information when making employment decisions (beyond a recommendation for more training). In general, the EEOC advises employers to eliminate policies or practices that “exclude people from employment based on any criminal record” and to replace them with “narrowly tailored” policies that provide for targeted, individualized screening of specific offenses based on a job’s essential requirements and actual duties. The Commission also recommends that employers keep a record of the justifications and research that supports those policies. Finally, the EEOC suggests that when asking questions about criminal records employers should limit their inquiries to records for which an exclusion would be job related for the position in question and consistent with business necessity.
Background checks remain fraught with potential pitfalls for employers. However, employers should not let those hazards stop them from performing proper due diligence on potential employees, provided that they do so in a targeted and individualized manner that relies only on criminal history in a manner that is consistent with the EEOC Guidance. We will be providing clients with more detailed guidance and training opportunities in the coming weeks on this important update of the EEOC’s views on the use of criminal history records in hiring.
These are desperate times and more and more employees are doing desperate things. How do you handle it if someone has been arrested before they were hired or even after they were hired? To begin with, the answer to this question varies on a state-by-state basis. That’s one reason why we encourage you to work with companies like our strategic partner, Global HR Research, because they conduct background checks and give you advice based on jurisdictional constraints. In some states it’s a free-for-all, if you decide not to hire someone because they were arrested, that’s OK. In other states, there is a prohibition against not hiring people because they were arrested. In fact, we know of some government contracts that require employers to hire people with an arrest record (only in America).
“Just how bad is it?” is the next question. Assuming work-related arrests are a legitimate reason for not hiring somebody, how bad was the situation? Did they steal something off a delivery truck? Did they swipe confidential data? Did they get busted smoking pot on the job or off the job? As Cicero famously said, let the punishment fit the crime.
Employers also have to be aware of negligent hiring causes of action where an arrest record was overlooked or not even looked into in the first place. For example, in one case I handled years ago, a nursing facility did not conduct background checks because it was so desperate for attendant. As a result, they hired somebody recently released from Folsom Prison for robbery and rape who, in turn, raped and murdered one of the patients. Of course, they were rightfully sued for millions of dollars. This was simply negligence on their part and doing no background checks at all is one of the greatest risk a company faces. Lastly, if the arrest occurs while in your employ, you’re certainly entitled to do your own independent investigation into the situation to determine if it makes sense to keep the employee on board. The recent fiasco at Penn State provides plenty of examples.
Of course, the smartest move to make in a situation like this is to work both with your attorney and, if it’s an executive, your public relations person.