Total Articles: 74
OFCCP Issues Directive on Use of Arrest and Conviction Records in Contractors’ Employment Decisions
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.
"And By The Way, Are You A Criminal?"
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.
Criminal Background Checks: OFCCP Backs EEOC'S Guidance
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.
Employers Faced January 1, 2013, Deadline to Update Fair Credit Reporting Act Notice
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.
Despite Continuing Grace Period, Employers Should Switch to New Fair Credit Reporting Act Notices Now
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.
OFCCP Issues Directive on the Use of Criminal Records in Hiring
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.
Give Me Some Credit! EEOC Credit-Check Case Dismissed
"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.
EEOC Suit Against Employer Screening Applicants Based on Credit History Information Dismissed
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
Employers Must Update Fair Credit Reporting Act Notices
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.
Reminder: Fair Credit Reporting Act Compliance and Reporting Changes Effective January 1, 2013
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.
Modified Fair Credit Reporting Act Notices Will Be Required Effective January 1, 2013
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 Attorney Testifies about Criminal Background before U.S. Commission on Civil Rights
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.
New Requirements for Employers’ Background Checks and Social Security Number Usage
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.
Updated Notice of Rights Form Required for Employers Who Conduct and Use Background Checks
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.
The Use of Criminal Records in Employment Will Get Another Look
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.
Employment Law Update: Employers Face FCRA Update Deadline of January 1, 2013
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.
Even Administrative Agencies Make Mistakes: Corrected Model FCRA Forms Now Available To Employers Who Conduct Background Checks
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.
New EEOC Enforcement Guidance On Use of Criminal Background Checks
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".
Can You Still Consider An Applicant's Criminal Record?
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.
Updated Federal Credit Reporting Act (FCRA) Notices
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.
Arrest and Conviction Records—A Fresh Look
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.
Employers Must Update FCRA Notices for Their Background Check Programs Before January 1, 2013
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
Bill Would Generally Ban Pre-Employment Criminal History Inquiries
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.”
Responding To The EEOC's Criminal Background Check Initiative
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.
EEOC ISSUES NEW GUIDANCE REGARDING CRIMINAL RECORDS
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.
Social-Media Screening Company Runs Afoul of FCRA
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.
EEOC Issues New Guidance Regarding Applicants and Employees with Criminal Records
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.
By The Way, Are You A Criminal?
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.
Using Conviction Records As A Screening Tool
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.
EEOC Targets Employer Criminal Background Checks
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.
EEOC Issues Guidance Regarding Employers' Consideration of Criminal Offenses
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.
Criminal Background Checks: Evolution of the EEOC's Updated Guidance and Implications for the Employer Community
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.
Are You Discriminating Against Ex-Cons?
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.
Benefits Outweigh Risks In Criminal Background Checks
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.
Guidance on the EEOC's New Guidance
Everything employers need to know about the new EEOC arrest and conviction record guidance.
EEOC Issues Updated Criminal Record Guidance that Highlights Important Strategic and Practical Considerations for Employers
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.
EEOC Breaks Out New Guidance On Use Of Criminal Background Checks In Employment Decisions
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.
EEOC Issues Enforcement Guidance on Employers' Consideration of Arrest and Conviction Records
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.
EEOC Publishes Guidance on Consideration of Arrest and Conviction Records
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.
"Hey, Jackie, can we talk?" The EEOC's Enforcement Guidance on criminal background information
Don't get me wrong, hon -- I'm cool with not usually considering arrest records in making employment decisions.
EEOC Issues New Enforcement Guidance on Use of Arrest and Conviction Records in Employment
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.
EEOC Approves Enforcement Guidance on the Use of Criminal Records in Employment
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.
EEOC Issues Revised Enforcement Guidance on Criminal Histories in Employment Selection Decisions
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.
EEOC Issues Enforcement Guidance on Employers' Consideration of Arrest and Conviction Records
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.
EEOC Releases Updated Guidance on Use of Conviction Records
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.
EEOC to Hold Meeting and Provide Guidance on the Use of Arrest and Conviction Records as well as Reasonable Accommodation and Undue Hardship Under the ADA
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).
EEOC Enforcement Guidance Expected on Employers' Consideration of Arrest and Conviction Records
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.
Federal and State Laws May Limit the Use of Healthcare Applicants’ Credit Reports
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 institution’s reputation.
Should Cyber-Screening by Employers Be Legislated?
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.
Background Checks: There's An App For That
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 – that would be you – are complying with the FCRA's requirements.
Can You Refuse To Hire A Felon?
Imagine you are a hotelier hiring for a sensitive position – 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.
Credit Checks by Employers - Are They Becoming a Thing of the Past?
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?
5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit
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?
The FTC Staff Report on "40 Years of Experience with the Fair Credit Reporting Act" Illuminates Areas of Potential Class Action Exposure for Employers
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.
EEOC Advisory Guidance Offers Insight on the Use of Arrest and Conviction Records
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."
A Helpful Reminder on Social Media and Background Checks
I recently ran across this helpful blog post from the Business Center Blog on the Federal Trade Commission’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 company’s background check process, companies need to make sure they do not accidentally run afoul of the Fair Credit Reporting Act.
FTC Approves Social-Media Background Searches
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.
Skeletons in the Closet: The Legal Issues of Conducting Background Checks and Inquiries
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.
Are Employment Class Action Arbitrations and Lawsuits Dead?
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 “… 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.†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 customer’s contract with AT&T Mobility). However, as the Supreme Court noted “The contract provided for arbitration of all disputes between the parties, but required that claims be brought in the parties’ ‘individual capacity, and not as a plaintiff or class member in any purported class or representation proceeding.’â€
Retail Industry: Better Double Check Your Use Of Credit Checks
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.
KAPLAN GETS TESTED
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.
Supreme Court Rules Government Contractors Now Subject to Background Checks
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).
High Court Rules NASA's Background Checks On Contractors Are Constitutional
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.
Supreme Court: Public Employers May Ask Comprehensive Background Questions Of Employees
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.
Is Creditworthiness a Protected Characteristic? Yes, says EEOC.
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.
Employer's unwritten policy regarding criminal background checks sufficient to overcome summary judgment.
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.
No Credit? No Problem! (The Sequel)
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.
Notice to Job Applicants of Intent to Search Social Networks.
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.
Background Screening Update: EEOC Issues Letter Cautioning Employers Against Discriminatory Use Of Credit Checks; Legislation May Soon Follow.
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”?
WHAT'S IN YOUR WALLET, JOB APPLICANT?
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.
Employment Screening Check on Megan’s Law Website Leads To Sexual Abuser’s Lawsuit.
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.
More Employers Searching Online for the Dirt on Candidates.
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.
BACKGROUND INVESTIGATIONS KEEP GETTING MORE COMPLICATED.
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.
Does Your School Make the Grade in Conducting Background Checks?
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?