Total Articles: 101
Franczek Radelet P.C • April 07, 2014
In past Franczek Radelet Alerts and webinars, my colleagues and I have talked at length about the potential pitfalls for employers of background checks and the changes that the advent of the Consumer Financial Protection Bureau (CFPB) and the resulting reorganization at the FTC meant for employers. Yes, I know, this is a wage and hour-focused blog, but before you can tackle wage and hour issues, you have to hire employees! Many employers who do background checks have not given much thought to what (if any) documentation they collect from applicants or employees before running them, so with hiring season upon us for many seasonal industries, now is a good time for a reminder about this “pre wage and hour” issue.
Ogletree Deakins • March 24, 2014
On March 10, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) jointly released two pamphlets on the use of background checks in the workplace: (a) one directed at employers and (b) the other at applicants and employees. The two documents, Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know, may be found on the EEOC’s website. Although these documents are the first official federal insight on this topic since the 2012 release of the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records, with one or two exceptions (discussed below), the documents do not break new ground; rather, they reiterate known “best practices” related to background checks in the employment context.
Constangy, Brooks & Smith, LLP • March 21, 2014
The EEOC -- can't live with 'em, can't live without 'em.
Littler Mendelson, P.C. • March 12, 2014
The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Federal Trade Commission (FTC) have issued joint guidance to employers, employees and job applicants on the use of background checks in employment. The tip sheets do not deviate from prior agency guidance on this topic, but rather provide “best practices” guidelines and additional resources. The first document, Background Checks: What Employers Need to Know, targets employers, while the other, Background Checks: What Job Applicants and Employees Should Know, is directed at employees and job
ManpowerGroup • February 25, 2014
Here’s a quick overview of the latest developments, followed by a more detailed discussion:
Littler Mendelson, P.C. • January 07, 2014
In 2013, the ballooning number of employment class actions illuminated the sea change in Fair Credit Reporting Act (FCRA) litigation. The FCRA was enacted in 1970 during President Nixon's administration, and is hardly in its adolescence. FCRA claims against employers, even class action lawsuits, are far from novel. Historically, though, such employment claims were infrequent and did not distract the plaintiff's bar from the feeding frenzy provided by wage and hour laws. Now, the storm clouds undoubtedly are gathering under the FCRA, and thus the investment by employers in fortifying their FCRA compliance is likely to pay substantial dividends. Below, we summarize the FCRA and offer five recommendations for weathering the stormy seas in 2014.1
Shaw Valenza LLP • December 23, 2013
I just read that the U.S. Senate, via Senator Elizabeth Warren, is introducing a bill to ban the use of pre-employment credit checks altogether. The proposed bill is here.
Jackson Lewis P.C. • December 20, 2013
A proposal to prohibit employers from using consumer credit reports “for employment purposes” or for making adverse employment decisions has been introduced in the Senate. The “Equal Employment for All Act” (S. 1837), a bill to amend the Fair Credit Reporting Act, was introduced by Senator Elizabeth Warren (D-Mass.) on December 17, 2013. It has six Democratic co-sponsors.
Littler Mendelson, P.C. • December 20, 2013
Sen. Elizabeth Warren (D-MA) has introduced a bill that would prohibit employers from asking prospective employees about their credit histories or obtaining such information through a consumer or credit report. In addition, the Equal Employment for All Act (S. 1837) would amend the Fair Credit Reporting Act (FCRA) to prevent employers from discriminating against employees on the basis of their credit worthiness. The bill would make an exception for jobs that require a national security clearance or where credit information is otherwise required by law. Notably, the bill does not include exceptions for positions in the financial services or banking industries.
Littler Mendelson, P.C. • November 14, 2013
As privacy professionals know too well, organizations that handle personal information, especially personal information that can trigger security breach notification obligations, have an overwhelming need to screen out untrustworthy applicants from positions that permit access to such data. One tool that many organizations have used for years is straightforward enough—asking applicants to check a box in response to the following question on an employment application: “Have you ever been convicted of a crime?”
Fisher & Phillips LLP • November 04, 2013
On August 9, 2013, the EEOC suffered its second defeat of the year in litigation involving employer use of criminal and credit background checks for employment screening. A federal district court in Maryland held that the EEOC’s expert analysis was statistically flawed, unreliable, and insufficient to demonstrate disparate impact. EEOC v. Freeman.
Young Conaway Stargatt & Taylor, LLP • October 10, 2013
The EEOC suffered another defeat this week, being ordered again to pay the fees and costs incurred by an employer after the EEOC’s claims turned out to be without merit. IN EEOC v. Peoplemark, Inc., A split 6th Circuit affirmed an award of approximately $750,000 in fees and costs incurred by a temp agency in defending against one of the EEOC’s criminal-history cases. The EEOC contended that the temp agency’s company-wide policy barring employment to individuals with felony records had a disparate impact on Black candidates.
Fisher & Phillips LLP • October 01, 2013
On August 9, 2013, the EEOC suffered its second defeat of the year in litigation involving employer use of criminal and credit background checks for employment screening. A federal district court in Maryland held that the EEOC’s expert analysis was statistically flawed, unreliable, and insufficient to demonstrate disparate impact. EEOC v. Freeman.
Littler Mendelson, P.C. • September 26, 2013
The Equal Employment Opportunity Commission (EEOC) recently responded to a letter sent by a number of state attorneys general urging the agency to reconsider its guidance on the use of criminal background checks in employment. The guidance at issue – Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 – has been criticized since its release last year.
Phelps Dunbar LLP • September 13, 2013
It has been over a year since the United States Equal Employment Opportunity Commission (“EEOC”) issued its revised enforcement guidance on the extent to which employers may rely on an individual’s criminal history in making hiring or other employment selection decisions. See the April 26, 2012 eLABORate. Although employers may continue to struggle to determine how to best comply with the guidance, as demonstrated by a recent U.S. District Court decision, they are also not defenseless to claims that their policies are discriminatory.
Littler Mendelson, P.C. • September 10, 2013
Criminal background checks obtained for employment purposes are under attack from various sources – the plaintiffs' bar via class and individual lawsuits lodged against employers and consumer reporting agencies, the U.S. Equal Employment Opportunity Commission, regulatory agencies, and the legislatures of states and municipalities. On the other hand, even the U.S. Supreme Court has reaffirmed the potential value that background checks have for employers, noting that, "[r]easonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable workforce." Likewise, governments continue to pass laws requiring specified employers, such as those in the healthcare, financial, security, and child care industries, to conduct criminal background checks, with the explicit or implicit rationale of protecting the public from risks associated with employing certain ex-offenders.
Fisher & Phillips LLP • September 05, 2013
Last year, we wrote about the EEOC’s then-new guidance on the use of criminal-background checks in hiring decisions. [“Using Conviction Records As A Screening Tool,” Retail Industry Update, June 2012]. In December 2012, the Commission issued a strategic enforcement plan that included targeting background checks as a barrier to employment of minorities. In June of this year, the Commission trumpeted the filing of lawsuits against Dollar General and BMW North America claiming their use of criminal convictions in hiring violates Title VII.
Littler Mendelson, P.C. • August 12, 2013
On August 9, 2013, a federal district court judge in Maryland dismissed, without a trial, the Equal Employment Opportunity Commission’s (EEOC) Title VII suit against Freeman over alleged discriminatory background checks based largely on fatal flaws in the EEOC’s expert report—described by the court as “an egregious example of scientific dishonesty.”1 The opinion acknowledges the legitimate, even “essential,” business reasons for conducting criminal background checks and highlights significant challenges the EEOC faces when prosecuting such suits. Although the court did not slam the door shut on the EEOC’s ability to challenge background checks in general, an appeal to the U.S. Court of Appeals for the Fourth Circuit seems likely. Because the EEOC remains focused on background checks2 – on June 11, 2013, it filed two new criminal record lawsuits, one in South Carolina and one in Illinois3 – the court’s opinion merits careful study.
Barker Olmsted & Barnier • July 09, 2013
The EEOC has filed two major lawsuits against large companies who conduct criminal background checks on new hires, alleging racial discrimination. Although the EEOC’s position is highly controversial and may be rejected by the courts, employers should nevertheless take steps to ensure that criminal checks are used in a fair way.
Constangy, Brooks & Smith, LLP • July 01, 2013
The recently announced class action filed by the U.S. Equal Employment Opportunity Commission against Dollar General highlights the importance for employers of making sure that they don't act too "automatically" in rejecting applicants or terminating current employees based on criminal convictions.
Shaw Valenza LLP • June 19, 2013
The EEOC is still filing lawsuits against employers who conduct criminal background checks as shown in this June 11 press release. States are limiting criminal background checks too. Based on the government's current hostility, it is important to review your background check policies and procedures frequently in all states in which you do business.
Phelps Dunbar LLP • June 18, 2013
In an opening salvo following its recently revised enforcement guidelines, the Equal Employment Opportunity Commission (“EEOC”) has filed suit against two major employers, a national retail chain and an international automobile manufacturer, alleging the companies used criminal background checks to disproportionately exclude African-Americans from their workforces.
Nexsen Pruet • June 18, 2013
The Equal Employment Opportunity Commission (EEOC or Commission) recently filed federal lawsuits against Dollar General and a BMW manufacturing plant in South Carolina based on the EEOC’s revised guidance concerning use of criminal background checks. The Commission’s new guidelines, revised last year, recommend that employers not ask applicants about past criminal convictions and encourage employers to give job applicants an opportunity to explain past criminal misconduct before they are rejected. The EEOC emphasizes that background checks have a discriminatory impact on minorities and can violate Title VII of the Civil Rights Act – even if the background check policy applies to all applicants regardless of race.
Jackson Lewis P.C. • June 14, 2013
The Seattle City Council has voted unanimously to prohibit employers from inquiring about an applicant’s criminal record or excluding from consideration for employment during the initial stage of the hiring process those with an arrest or criminal record. Council Bill 117796 will take effect on November 1, 2013, if, as expected, Seattle Mayor Mike McGinn (D) signs the measure.
Littler Mendelson, P.C. • June 13, 2013
In March 2010, an employer successfully persuaded the Equal Employment Opportunity Commission (EEOC) to concede its disparate impact discrimination lawsuit against the employer based on its criminal record screening policies in a federal case in Michigan.1 The EEOC was ordered to pay $250,000 in attorney's fees and $500,000 in costs, including expert witness fees. In February 2013, a different employer successfully persuaded a federal court in Ohio to dismiss the EEOC's disparate impact discrimination lawsuit against the employer based on the employer's credit history screening policies.2 In a similar disparate impact discrimination case that is currently pending in Maryland involving both criminal records and credit history information, a different employer has made a similar motion to dismiss the EEOC's lawsuit, and the federal court could issue a ruling at any time.3
Littler Mendelson, P.C. • June 10, 2013
The public policy interests supporting employment-related protections for ex-offenders, including encouraging ex-offenders to reenter the workforce, are detailed in the updated EEOC Enforcement Guidance, titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,”1 released in April 2012. And, while states like California, Massachusetts, New York and Wisconsin already extend such protections to ex-offenders, employers need to be mindful of additional new state and local laws that seek to promote these same public policy interests by restricting inquiries into and the use of criminal records for employment purposes. For example, late last year the City of Newark, New Jersey, enacted a so-called “Ban the Box” ordinance that, with very limited exceptions, prohibits employers from inquiring about an applicant’s criminal history on an employment application, and Minnesota followed suit just last month by enacting the state’s own version of a “Ban the Box” law. The trend continues across the country, and thus now, perhaps more than ever before, employers must stay abreast of these ex-offender protection laws and should closely monitor pending legislation at both the federal, state and local level.
Shaw Valenza LLP • May 31, 2013
The Equal Employment Opportunity Commission and some state and local governments became concerned with employers’ use of credit checks following the 2008 economic crisis. Many people found themselves out of work, negatively affecting credit scores. Others were unable to pay their mortgages when subprime mortgage rates adjusted, which also lowered their credit ratings.
Jackson Lewis P.C. • March 05, 2013
The U.S. Department of Labor Office of Federal Contract Compliance Programs (“OFCCP”) has announced it will be reviewing carefully employer consideration of candidate criminal history information for systematic discrimination. OFCCP’s Directive 306, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin,” issued on January 29, 2013, and effective immediately, applies to all covered federal contractors and subcontractors.
Fisher & Phillips LLP • March 05, 2013
According to some studies, over 90% of employers conduct criminal-background checks for some job applicants and over 70% of employers conduct background checks on all potential new hires. This includes many hospitality-industry employers. Most decision-makers want information about criminal behavior and other related data before bringing a candidate into the organization.
Phelps Dunbar LLP • February 18, 2013
In a surprising move, on January 29, 2013, the Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP") issued Directive 306, entitled "Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin," instructing federal contractors to strongly consider federal anti-discrimination laws before excluding applicants from employment based on the results of criminal background checks. In so doing, the OFCCP adopted the Revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions issued by the Equal Employment Opportunity Commission ("EEOC") on April 25, 2012. Click here for our discussion of the revised guidance.
Nexsen Pruet • February 18, 2013
Effective January 1, 2013, there was a new form that employers must provide prospective or current employees when conducting background checks subject to the Fair Credit Reporting Act (FCRA). The main change in the form directs employees to contact the Consumer Financial Protection Bureau (CFPB) or visit its website at www.consumerfinance.gov/learnmore for further information about their consumer protection rights, versus contacting the Federal Trade Commission (FTC), the agency that has traditionally had responsibility for interpreting the FCRA. The CFPB has not, at this time, imposed additional substantive requirements on employers.
Franczek Radelet P.C • February 11, 2013
Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress transferred rule-making authority for the relevant portions of the Fair Credit Reporting Act (FCRA) from the Federal Trade Commission (FTC) to the Consumer Financial Protection Bureau (CFPB). Employers that use third parties to provide background check reports for hiring and other employment purposes must comply with FCRA, as well as any applicable state laws. Among other requirements, the FCRA mandates that employers using third party background checks provide applicants and employees with a notice of their rights under the FCRA in various situations, including: (i) prior to taking an adverse action against an individual based on his or her background check report; and (ii) in connection with the procurement of an investigative consumer report. Employers have historically used the FTC’s sample notice entitled “A Summary of Your Rights Under the Fair Credit Reporting Act” to help satisfy this requirement.
Littler Mendelson, P.C. • February 08, 2013
The DOL’s Office of Contract Compliance Programs (OFCCP) has issued a new directive advising federal contractors and subcontractors about potential discriminatory liability that could result from using criminal records as a screening device. According to the agency, policies and practices that exclude workers with criminal records without taking into account the age and nature of the offense could run afoul of Title VII of the Civil Rights Act by adversely impacting minority candidates. In addition to discussing the ways in which using criminal background checks may violate anti-discrimination laws, the directive provides information on the recently updated Equal Employment Opportunity Commission enforcement guidance on this topic, as well as the Training and Employment Guidance Letter (TEGL) issued by the DOL’s Employment and Training Administration that addresses the relevance of excluding candidates with criminal records to existing nondiscrimination obligations of public workforce system entities.
Young Conaway Stargatt & Taylor, LLP • February 07, 2013
"Give Me Some Credit!" Maybe that's how the EEOC feels these days, after its high-profile suit against Kaplan Higher Education Corp. was dismissed on January 28, 2013. As readers may remember, the EEOC sued Kaplan in 2010, alleging that its pre-employment credit check policies had a disparate impact upon Black job applicants.
Littler Mendelson, P.C. • February 05, 2013
In April 2012, the Equal Employment Opportunity Commission (EEOC) issued its updated enforcement guidance concerning how, in its view, Title VII of the Civil Rights Act of 1964 (Title VII) restricts an employer's discretion to consider criminal records relative to employment decisions.1 The EEOC was scheduled to release at the same time its updated guidance concerning the use of credit history information, but at the last minute decided (without explanation) not to do so. Even before April 2012, however, the EEOC filed lawsuits against a handful of employers, including Kaplan Higher Education Corporation (Kaplan), for allegedly violating Title VII by relying on criminal and credit records. On January 28, 2013, the district court judge in EEOC v. Kaplan Higher Education Corp.2
Brody and Associates, LLC • January 09, 2013
As of January 1, 2013, employers must use a new Summary of Fair Credit Reporting Act Rights notice when advising applicants or employees of adverse actions taken because of information obtained from a background check or credit check.
Constangy, Brooks & Smith, LLP • December 28, 2012
The federal Fair Credit Reporting Act was enacted in 1971 to regulate the consumer credit reporting industry. Employers that use and request consumer background checks from consumer reporting agencies are automatically subject to FCRA regulations. Before an employer may seek to procure a consumer credit report, criminal background, or background check from a Credit Reporting Agency, applicants or employees subject to screening must be provided certain information, including information about the scope of the check being performed. Background information may not be obtained without the employer's obtaining written consent from the employee or applicant.
Franczek Radelet P.C • December 21, 2012
The following is an important message for all employers that use credit reporting agencies to perform pre-employment background checks or other related investigations:
Jackson Lewis P.C. • December 21, 2012
Jackson Lewis LLP Partner Garen Dodge presented compelling testimony to the U.S. Commission on Civil Rights on employers’ use of criminal conviction records that some recent, well-intentioned efforts by the Equal Employment Opportunity Commission to expand employment opportunities for ex-offenders, by limiting prospective employer inquiries, may be flawed in part. Mr. Dodge is co-coordinator of the firm’s Government Relations practice.
Schulte Roth & Zabel LLP • December 07, 2012
Under the Fair Credit Reporting Act (the “FCRA”), an employer that plans to make an employment decision adverse to a prospective or current employee based at least in part on information contained in a “consumer report” (which includes background checks performed by third parties) must provide that employee or applicant with a notice that includes a summary of consumer rights before taking the contemplated adverse action. Any summary of consumer rights that employers provide to employees or applicants pursuant to the FCRA on or after Jan. 1, 2013 must comply with new federal regulations adopted by the Consumer Financial Protection Bureau (the “CFPB”), which now shares jurisdiction over the FCRA with the Federal Trade Commission.
Vedder Price • December 06, 2012
By January 13, 2013, employers who obtain consumer reports (i.e., background reports) from consumer reporting agencies must replace the Summary of Rights form they provide to applicants/employees with a new version of the form.
Littler Mendelson, P.C. • November 30, 2012
The U.S. Commission on Civil Rights (USCCR) has announced that it will hold a public briefing to examine the use of criminal background checks in employment. The meeting will discuss in particular how criminal background checks impact African American and Hispanic workers, as well as the Equal Employment Opportunity Commission’s (EEOC) recently-approved updated enforcement guidance on this topic in general. The fact that the USCCR is holding this public forum indicates that the use of criminal histories in employment continues to be a hot-button issue months after the EEOC issued its guidance.
Nexsen Pruet • November 30, 2012
Effective January 1, 2013, there is a new form that employers must provide prospective or current employees when conducting background checks subject to the Fair Credit Reporting Act (FCRA). The main change in the form directs employees to contact the Consumer Financial Protection Bureau (CFPB) or visit its website at www.consumerfinance.gov/learnmore for further information about their consumer protection rights, versus contacting the Federal Trade Commission (FTC), the agency that has traditionally had responsibility for interpreting the FCRA. The CFPB has not, at this time, imposed additional substantive requirements on employers.
Littler Mendelson, P.C. • November 20, 2012
The Consumer Financial Protection Bureau (“CFPB”) — best known as a financial services regulator and for the Senate’s rejection of the nominee to be its first chief (who, in an ironic twist, won a Senate seat in the 2012 elections) — also exercises some regulatory authority with an impact on employers.
Ballard Rosenberg Golper & Savitt • November 15, 2012
The EEOC has issued new and important Enforcement Guidance in response to the growing percentage of working-age Americans who have criminal records, the disproportionate increase in this rate within the African American and Hispanic population, and increased employer access and use of such records. The Guidance explains how employers may use criminal records when making employment decisions without running afoul of federal anti-discrimination laws. Citing to arrest and incarceration statistics, the Guidance states that: "Assuming that the current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and 1 in 3 for African American men." The theory behind the new Guidance is that because African Americans and Hispanics are statistically more likely to have criminal records, hiring practices which automatically exclude anyone with a criminal record from employment will disproportionately impact African American and Hispanic job applicants and employees. Under Title VII of the Civil Rights act of 1964, such policies are impermissible, except to the extent they can be shown to be legitimately related to the job in question and "consistent with business necessity".
Fisher & Phillips LLP • November 06, 2012
Some of our dealership clients are confused about whether or not it is still permissible to check an applicant's criminal record. The confusion is due in part to the publicity concerning recently passed state and municipal laws which restrict the right of some employers to check an applicant's criminal record, and partially due to the EEOC's recently issued "Enforcement Guidance" on the topic.
Jackson Lewis P.C. • September 19, 2012
By January 1, 2013, businesses, including employers, and consumer reporting agencies must update the Fair Credit Reporting Act (“FCRA”) notices mandated by the federal government to reflect that the Consumer Financial Protection Bureau (“CFPB”) has taken over enforcement of the FCRA from the Federal Trade Commission (“FTC”). Changes to the notices are generally stylistic and substitute CPFB references for FTC references.
Fredrikson & Byron, P.A. • September 06, 2012
The recent enforcement guidance issued by the Equal Employment Opportunity Commission (EEOC) on the use of arrest and conviction records brings a sleeper issue to the forefront and underscores the EEOC’s continuing focus on employer recruiting and hiring practices. The guidance, entitled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Enforcement Guidance) provides both a legal and a practical framework from the EEOC’s perspective for addressing employer use of criminal background information and supersedes previous EEOC pronouncements on the subject. While the Enforcement Guidance is simply a guidance and does not carry the force of law, it does provide insight into the agency’s approach to the topic and prompts the savvy employer to take a closer look at its use of arrest and conviction records as a screening tool.
Littler Mendelson, P.C. • September 06, 2012
High-profile enforcement actions by the Federal Trade Commission (FTC) have increased overall employer awareness of the employer-specific requirements of the Fair Credit Reporting Act (FCRA) and corresponding state laws. Before January 1, 2013, employers should use the new FCRA notices for their background check programs, which reflect modest changes to the mandatory agency-drafted FCRA summary of rights form (the "FCRA Summary of Rights"). The FCRA Summary of Rights form must be included: (1) as an enclosure with the first of the two "adverse action" notices – the "pre-adverse action" notice; and (2) with the disclosures for "investigative consumer reports" (i.e., consumer reports based on personal interviews conducted by a consumer reporting agency (CRA), such as in-depth reference checks). The updates reflect the transfer of much of the responsibility for interpreting the FCRA from the FTC to the newly created Consumer Financial Protection Bureau (CFPB).1
Littler Mendelson, P.C. • August 03, 2012
Legislation introduced on July 26, 2012 would make it unlawful for an employer to ask job applicants whether they have ever been convicted of a crime until after a conditional offer of employment is made, except in limited circumstances. Specifically, the Ban the Box Act (H.R. 6220), introduced by Rep. Hansen Clarke (D-MI), would prevent an employer from “mak[ing] inquiries of an applicant for employment or otherwise seek[ing] information about such an applicant (including through the use of any form or application) relating to whether such applicant has ever been convicted of a criminal offense.” The measure would permit such questions only after a conditional offer for employment has been made, or where offering the applicant the position before a criminal background check is conducted “may involve an unreasonable risk to the safety of specific individuals or to the general public.”
Fisher & Phillips LLP • July 06, 2012
As most of our readers have probably heard by now, the EEOC seems to want all employers to discontinue, or at least significantly curtail, their use of criminal-background checks. The EEOC's Guidance outlines the agency's position on criminal-background-check policies, but leaves many important questions unanswered, particularly with respect to schools, which are often required to conduct criminal-background checks. So, what, if anything, should schools be concerned about in light of this bold policy move by the EEOC? To the surprise of some, the answer may actually be no different than what you are already doing.
Shaw Valenza LLP • June 20, 2012
Employers commonly conduct criminal background checks, and may use such information to disqualify candidates for employment. For example, a pharmaceutical company may think twice before hiring someone it discovers has been recently convicted of a drug-related offense, while a bank obviously could decide that a convicted robber might not make a good teller. Failing to perform such “due diligence” could result in claims for negligent hiring too, where, for example, an employer fails to take steps to discover an applicant’s history of violent crimes, and that individual later harms another employee or member of the public.
Young Conaway Stargatt & Taylor, LLP • June 18, 2012
Employers' use of social media as part of the hiring process continues to make the news. Although much has been made of the nuances of the idea, cyber-screening can be performed lawfully and with positive results--when it's done properly. When it's not, though, there can be lots of significant consequences.
Schulte Roth & Zabel LLP • June 14, 2012
New guidance from the U.S. Equal Employment Opportunity Commission ("EEOC") provides that employment decisions based on criminal history may constitute employment discrimination and suggests that employers eliminate policies or practices that generally exclude people from employment based on criminal records. New York law has long limited the use of arrests, criminal charges and convictions in employment decisions. This Alert summarizes the EEOC's guidance, revisits federal and New York state laws regarding background checks and permissible uses of criminal records in connection with employment decisions, and addresses how to comply simultaneously with the statutes and disclosure obligations imposed in federal securities regulations.
Fisher & Phillips LLP • June 07, 2012
The EEOC's Version Of "Don't Ask, Don't Tell"
You've probably heard the news by now – the EEOC seems to want all employers to discontinue, or at least significantly curtail, their use of criminal-background checks. The EEOC's Guidance outlines the agency's position on criminal-background-check policies, but leaves many important questions unanswered. Understanding that the Guidance is not law, but only the EEOC's interpretation of the law, you should keep several issues in mind when hiring.
Fisher & Phillips LLP • June 04, 2012
The retail industry is beset by shrink both from internal and external sources. A store with shelves loaded with merchandise is a ripe target for shoplifting. Cash transactions at registers present multiple opportunities for a dishonest employee to steal from the company. Retailers invest millions in preventing these behaviors, but even the most sophisticated security systems cannot stop 100% of theft.
Barker Olmsted & Barnier • June 01, 2012
The EEOC looks askance at criminal background checks for job applicants. What seems like a commonsense business protocol is seen by our federal government as a proxy for filtering out minority applicants. In April 2012, the EEOC updated its policy position on the matter, and employers should take steps to ensure that hiring practices comply.
Cooley LLP. • May 22, 2012
On April 25, 2012, the U.S. Equal Employment Opportunity Commission (the "EEOC") issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the "Guidance"). The Guidance is the EEOC's first formal policy statement on this topic in 20 years, and the first since the 1991 Civil Rights Act codified Title VII's employment discrimination disparate impact analysis. The development is particularly timely, as the proliferation of online databases now makes it easier than ever for employers to learn an individual's criminal record history.
Littler Mendelson, P.C. • May 18, 2012
On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) finally issued its "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" (hereinafter "Updated Guidance") concerning the use of criminal records by employers. The EEOC issued the Updated Guidance "on the heels" of its January 2012 announcement of a $3.1 million settlement with an employer following the EEOC's finding that the employer allegedly screened out more than 300 African American job applicants due to their criminal records. Based on the EEOC's systemic initiative, the EEOC also has been intensively scrutinizing the criminal records screening policies used by employers in many different industries, including motor carriers, retailers and manufacturers. A flurry of new EEOC charges and similarly broad investigations by the Commission is virtually certain in the next 12 to 24 months. These developments set the stage for employers to closely review their hiring policies involving the consideration of criminal records in order to assess potential Title VII risk and opportunities to meaningfully reduce that risk without compromising other legitimate and even compelling business interests.
Brody and Associates, LLC • May 16, 2012
Refusing to hire ex-convicts may violate federal prohibitions against race and national origin discrimination, according to new enforcement guidance from the Equal Employment Opportunity Commission.
Fisher & Phillips LLP • May 11, 2012
In April 2012, the National Consumer Law Center (NCLC) published a report titled "Broken Records: How Errors By Criminal Background Checking Companies Harm Workers and Businesses." The report urges the U.S. Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) to use their rulemaking authority under the Fair Credit Reporting Act (FCRA) to further regulate employers and criminal background check companies.
ManpowerGroup • May 02, 2012
Everything employers need to know about the new EEOC arrest and conviction record guidance.
Littler Mendelson, P.C. • May 01, 2012
For the past few years, the Equal Employment Opportunity Commission (EEOC) has publicly discussed the need to update its enforcement guidance concerning the use of arrest and conviction records in hiring and employment.1 This was an area of significant interest for employers in virtually all industries, especially after the EEOC publicly announced its $3.13 million settlement with Pepsi concerning criminal records in January 2012.2 After several false starts, the EEOC issued its final updated enforcement guidance, the product of a 4-1 vote by the Commission members on April 25, 2012, titled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964."3 The updated guidance, and the EEOC's related Q&A document,4 do not prohibit employers from using criminal records, and indeed outline what the EEOC considers recommended best practices. However, the practical implications and day-to-day application of the updated guidance (even considering its surprisingly moderate tone) raise a raft of questions and strategic considerations for employers. This is in part due to the EEOC's strenuous emphasis on the need, in its view, for employers to conduct an "individualized assessment" of each potentially disqualified ex-offender applicant and employee.
Constangy, Brooks & Smith, LLP • May 01, 2012
On April 25, 2012, the Equal Employment Opportunity Commission announced its much-anticipated new Enforcement Guidance on employers' use of criminal background information in making employment decisions. The new guidance came in a bit of a rush as the EEOC was about to lose its Democratic majority with the resignation of Commissioner Stuart Ishimaru, which becomes effective at the end of April.
Ogletree Deakins • April 30, 2012
On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued, after a vote of 4-1, an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (the "Guidance"). The Guidance, which takes effect immediately, is a summary of the EEOC's long-held position that employers’ reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin, with significant changes in certain areas that are important to most employers. Republican-appointee Commissioner Constance S. Barker dissented, while Republican-appointee Commissioner Victoria A. Lipnic voted with the majority, after reportedly securing some employer-friendly concessions in the Guidance. There was a push to get the Guidance approved before Democrat-appointee Commissioner Stuart J. Ishimaru steps down later this month.
Young Conaway Stargatt & Taylor, LLP • April 30, 2012
This guidance has been much anticipated since the EEOC held a public hearing on this topic last summer. If you were not already aware of the issue, the crux is this: arrest and incarceration rates are significantly higher in certain ethnic groups than others. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Therefore, if an employer exclude individuals based solely on their criminal records, that decision is likely to disproportionately affect certain ethnic groups, thereby violating Title VII.
Constangy, Brooks & Smith, LLP • April 30, 2012
Don't get me wrong, hon -- I'm cool with not usually considering arrest records in making employment decisions.
Jackson Lewis P.C. • April 27, 2012
The Equal Employment Opportunity Commission has approved, by a 4-1 vote, a revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. The Guidance is effective immediately. Before disqualifying an individual with a criminal record from employment, the Commission emphasizes, employers should engage in an individualized assessment involving a dialogue with that individual. While the Guidance states that employers would not violate Title VII if they disqualify an applicant based on separate federal restrictions on the employment of persons with criminal records, an employer may not defend a decision to disqualify an individual solely on state restrictions on the hiring of persons with criminal records.
Littler Mendelson, P.C. • April 27, 2012
On Wednesday the Equal Employment Opportunity Commission (EEOC) approved in a 4-1 vote updated enforcement guidance governing the legality of considering a job applicant’s or employee’s criminal history when making hiring or other employment decisions. Commissioner Victoria Lipnic (R) joined the Democrat Commissioners in support of the guidance, while Constance Barker (R) was the lone member to vote against the new guidance.
Phelps Dunbar LLP • April 27, 2012
On April 25, 2012, the United States Equal Employment Opportunity Commission ("EEOC") issued revised enforcement guidance on the extent to which employers may rely on an individual’s criminal history in making hiring or other employment selection decisions.
EEOC has long taken the position that making employment decisions solely based on an applicant’s criminal record may violate Title VII of the Civil Rights Act of 1964, as amended, ("Title VII") when such reliance disproportionately and unjustifiably excludes people of a particular race or national origin and is not job related and consistent with business necessity, i.e., "disparate impact" discrimination.
Ogletree Deakins • April 27, 2012
On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued, after a vote of 4-1, an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (the "Guidance"). The Guidance, which takes effect immediately, is a summary of the EEOC's long-held position that employers' reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin, with significant changes in certain areas that are important to most employers. Republican-appointee Commissioner Constance S. Barker dissented, while Republican-appointee Commissioner Victoria A. Lipnic voted with the majority, after reportedly securing some employer-friendly concessions in the Guidance. There was a push to get the Guidance approved before Democrat-appointee Commissioner Stuart J. Ishimaru steps down later this month.
Franczek Radelet P.C • April 26, 2012
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.
Littler Mendelson, P.C. • April 23, 2012
The Equal Employment Opportunity Commission (EEOC) intends to hold a public meeting on April 25, 2012 to discuss enforcement guidance on the legality of considering arrest and conviction records in making hiring decisions, and guidance on reasonable accommodation and undue hardship under the Americans with Disabilities Act (ADA).
Jackson Lewis P.C. • April 20, 2012
The Equal Employment Opportunity Commission will vote on April 25, 2012, to approve new enforcement guidance on the use of criminal background checks in employment. It is expected that the EEOC’s new guidance will substantially modify existing EEOC guidance on criminal background checks, which has been in existence since 1987. Employers seeking to avoid Title VII litigation risks anticipated from the new guidelines may have to reconsider and refine their use of criminal background checks in making employment decisions, and individuals posing increased risk to co-workers, customers and the public, and to employers, may be hired or retained.
Littler Mendelson, P.C. • March 27, 2012
Hiring the wrong employee can be costly, particularly in a healthcare environment where theft, disclosure of personal health information, or workplace violence can have a devastating effect on patient care and a healthcare institutionâ€™s reputation.
Young Conaway Stargatt & Taylor, LLP • March 06, 2012
Employers have been cyber-screening job candidates for years now. Although reports vary on how many of the nation's employers are Googling applicants, officially or unofficially. But the practice is a reality.
Fisher & Phillips LLP • March 05, 2012
In January of this year, the Federal Trade Commission (FTC) issued a warning to three companies that sell mobile applications (apps) which provide background reports, including criminal record reports. The issues are whether those apps and reports are covered by the Fair Credit Reporting Act (FCRA), and whether the providers and their customers â€“ that would be you â€“ are complying with the FCRA's requirements.
Fisher & Phillips LLP • March 05, 2012
Imagine you are a hotelier hiring for a sensitive position â€“ perhaps a night auditor or purchasing clerk. Your practice is to conduct criminal-background checks on all applicants, since almost all of your employees will have some access to your guests and their property. During an initial phone interview the applicant reveals a significant criminal conviction. He tells you that he was recently convicted of a felony involving distribution of narcotics, served a short sentence and is currently on probation.
Brody and Associates, LLC • February 23, 2012
Seven states (California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington) have laws prohibiting employers from checking credit reports unless there is a nexus to actual job responsibilities. In 2011, 29 states and the District of Columbia considered similar legislation. Are credit checks by employers becoming a thing of the past?
Young Conaway Stargatt & Taylor, LLP • January 20, 2012
Criminal background checks of job applicants seems to have reached a tipping point as a topic in employment-law circles. So, what are the key components leading to this perfect storm of EEO laws?
Littler Mendelson, P.C. • December 14, 2011
In July 2011, the Federal Trade Commission released a comprehensive Staff Report discussing "40 Years of Experience with the Fair Credit Reporting Act." Employers that use background reports for employment purposes can mitigate litigation risks by familiarizing themselves with the Staff Report, including the risk of class action claims under the Fair Credit Reporting Act.
Littler Mendelson, P.C. • October 26, 2011
In July 2011, the Equal Employment Opportunity Commission (EEOC) held its latest meeting on the topic of protections for job applicants with arrest and conviction records under Title VII of the Civil Rights Act of 1964. The full Commission heard remarks from the panelists about "Best Practices From Employers" and related topics.1 Although the EEOC clearly has renewed its focus on the hiring process, including Title VII protections for ex-offenders, many employers were disappointed that the EEOC did not reveal at the meeting whether it will update its 1987 Policy Statement on the Issue of Conviction Records under Title VII.2 Notably, one of the Commissioners referenced at the hearing the U.S. Court of Appeals for the Third Circuit's decision in El v. South Eastern Pennsylvania Transportation Authority (SEPTA),3 in which the court expressly criticized the 1987 Policy Statement as "vague."
Fredrikson & Byron, P.A. • July 13, 2011
I recently ran across this helpful blog post from the Business Center Blog on the Federal Trade Commissionâ€™s Bureau of Consumer Protection website: The Fair Credit Reporting Act & social media: What businesses should know. The post reminds readers that when social media content is used as part of a companyâ€™s background check process, companies need to make sure they do not accidentally run afoul of the Fair Credit Reporting Act.
Young Conaway Stargatt & Taylor, LLP • July 12, 2011
Employment-related background searches are commonplace today. For the past few years, there has been quite a bit of controversy over background searches that include searches of social-networking sites, such as Facebook and Twitter, for information about potential job candidates.
Fisher & Phillips LLP • June 20, 2011
As the economy rebounds, many employers affected by the recession are hiring again. The last time employers searched for talent when recruiting was being conducted at its current pace, the world of employee screening was very different. Philadelphia hadn't yet banned the "box;" there were not over 500 million Facebook users or multiple states enacting credit check laws. To avoid legal landmines, now is the time for employers to brush up on the basics of conducting background checks and inquires.
Fredrikson & Byron, P.A. • May 02, 2011
On April 27, 2011, the U.S. Supreme Court held, in a 5-4 decision, that the purpose of the Federal Arbitration Act (FAA) is to â€œâ€¦ ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.â€ AT&T Mobility LLC v. Concepcion. This case involved a husband and wife (the Concepions) who were customers of AT&T Mobility, in California, who brought a class action arbitration claim against AT&T Mobility (arguably in accordance with the terms of the customerâ€™s contract with AT&T Mobility). However, as the Supreme Court noted â€œThe contract provided for arbitration of all disputes between the parties, but required that claims be brought in the partiesâ€™ â€˜individual capacity, and not as a plaintiff or class member in any purported class or representation proceeding.â€™â€
Fisher & Phillips LLP • March 03, 2011
Colorado, Maryland and Pennsylvania are the latest to join a growing number of states that have taken steps to limit an employer's ability to perform credit checks on its employees. So far, only four states have actually enacted laws limiting use of credit checks for employment purposes. But approximately 10 others have introduced similar legislation aimed at prohibiting employers from using information contained in an employee's credit history to deny employment, or basing employment decisions (such as transfers, reassignments, promotions or terminations) on such information. Additionally, at least two states already prohibit the use of credit checks for non-financial jobs.
Shaw Valenza LLP • February 10, 2011
In my May 13, 2010 column,"What's in Your Wallet, Job Applicant," I addressed increased government scrutiny of employers who rely on credit checks to screen applicants. The Equal Employment Opportunity Commission has decided to turn up the heat.
Jackson Lewis P.C. • January 31, 2011
The U.S. Supreme Court has ruled unanimously that the federal government may conduct wide-ranging background checks of workers employed by government contractors. NASA v. Nelson, No. 09-530 (Jan. 19, 2011).
Ogletree Deakins • January 21, 2011
This morning, with Justice Samuel Alito writing an opinion supported by eight justices, the U.S. Supreme Court held that the federal government's inquiries on two forms used to conduct background investigations on federal contractors do not violate a constitutional right to informational privacy. According to the Court, the inquiries were reasonable in light of the government's interest in identifying capable employees to faithfully conduct its business and the collected information was protected by the Privacy Act’s nondisclosure requirements.
Fisher & Phillips LLP • January 20, 2011
In a rare unanimous decision, the Supreme Court held on January 19, 2011 that NASA's background inquiries of its contract employees regarding drug treatment or counseling and other negative "general behavior or conduct" of its contract employees were tailored to the government's interests in managing its workforce and therefore did not violate the employees' right to informational privacy. The Court ducked the issue of whether such information is actually protected by any Constitutional right to privacy, leaving that question open for another day.
Young Conaway Stargatt & Taylor, LLP • December 27, 2010
EEOC has filed a particularly newsworthy lawsuit against Kaplan Higher Education Corp.The suit is based on Kaplan’s alleged consideration of candidates’ credit histories during the hiring process. EEOC takes the position (and has, for quite some time), that employers may be engaging in unlawful employment discrimination by using a candidate’s credit history when deciding who to hire. EEOC contends that this practice, in which many employers engage regularly, has an unlawful discriminatory impact based on race and is neither job-related nor justified by business necessity. In short, EEOC alleges that employers, including Kaplan, are disproportionately disqualifying black candidates due to credit ratings.
Ogletree Deakins • October 11, 2010
The 8th U.S. Circuit Court of Appeals has determined that a company’s unwritten policy against hiring applicants with theft-related convictions was sufficient basis to exclude a minority applicant from a position with the company.
Constangy, Brooks & Smith, LLP • September 15, 2010
In today’s economic climate, employers often want to analyze applicants’ credit reports. A poor credit history may indicate problems that an employer would prefer to avoid. But using credit reports legally requires a thorough understanding of the various federal and state laws that can come into play in this area.
Young Conaway Stargatt & Taylor, LLP • July 19, 2010
Employers who want to use include social-networking sites into their background-check process when considering potential job candidates often ask whether they have to notify the applicant in advance that his or her Facebook page may be viewed during the hiring process. Unless you have a third party perform the Facebook search, the answer is “no.” Employers do not legally need the consent of a potential employee to conduct an Internet search and to view what is otherwise publicly available. But the mere fact that something is not legally required does not necessarily mean that it’s not a good idea. In fact, I’m an advocate of notifying applicants not only that you intend to review the individual’s online presence, including his or her presence on social networks, but also the specific items that you’ll be looking for when you do conduct the search.
Barker Olmsted & Barnier • June 04, 2010
Employers routinely conduct credit checks as part of pre-employment screening. Sometimes this information is used to make hiring decisions. Can an applicant who is denied a job based on a credit report claim “discrimination”?
Shaw Valenza LLP • May 14, 2010
Recent economic data suggest the job market is thawing. With high unemployment persisting, many employers will have several candidates applying for each new job opening.
Barker Olmsted & Barnier • April 08, 2010
William Mendoza, a convicted sex offender, applied for a job in August 2007. After Mr. Mendoza submitted his application, ADP Screening and Selection Services, Inc. conducted a background search on him. As part of the background search, it accessed the California Megan’s Law website and discovered that he was a sex offender. ADP passed this information on to the prospective employer. Mr. Mendoza did not get the job.
Young Conaway Stargatt & Taylor, LLP • March 18, 2010
According to a study by Microsoft, 70% of HR professionals have turned down job candidates because of the candidate’s online activity and reputation. On the flip side, approximately 60% of Internet users admit that their online behavior may affect their professional and personal lives. But only 15% of them actually think of the potentially negative impact when surfing the Web and posting content.
Shaw Valenza LLP • September 23, 2008
Employers increasingly are relying on credit and background checks in the hiring process. Employers want assurances that their employees are honest and trustworthy. Internal investigations of certain misconduct allegations are now required by anti-discrimination laws and others, such as Sarbanes-Oxley. At the same time, surveys show resume fraud is rampant. Job references often won’t provide information about former employees other than “name, rank and serial number.” With a bad economy, huge student loan liabilities, and the mortgage crisis, potential employees may appear to be untrustworthy with credit.
Fisher & Phillips LLP • March 06, 2008
You've just admitted an adorable 5 year-old child to Kindergarten. The next day, you receive an anonymous message that the child's mother is on the state's sex-offender website. You check and confirm that the information is correct. How should a school handle this situation? Must you act? Is it enough to eliminate the parent from campus? What about the inevitable sleepover? Must you notify the school community of the parent's background?
As discussed below, there are no easy answers to these issues. The problem that schools face with more frequency today is how to determine which persons should be allowed to be on the school's campus, whether as an employee, contractor, or parent. In addition to complying with various state laws and accrediting guidelines that typically address employees and contractors, schools must increasingly ask: Should we require more information about our parents? If so, under what circumstances? And if we don't, what are the consequences?