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Total Articles: 82

When is a Background Search not a Background Search?

The Fair Credit Reporting Act (FCRA) was enacted to insure that consumer reporting agencies act with “fairness, impartiality, and respect for the consumer’s right to privacy.” But one federal court held recently that LinkedIn’s search technology does not make that site a “consumer reporting agency” for purposes of FCRA. As a result, a federal court magistrate judge recently dismissed the claims of a group of individuals who alleged that they were not hired because a potential employer used LinkedIn’s “Reference Search” feature to obtain background information on them. Sweet v. LinkedIn Corporation, NDCA, No. 5:14-cv-04531(April 14, 2015).

Supreme Court Will Resolve Fair Credit Reporting Act Dispute

The Supreme Court has agreed to decide if an internet people-search company, Spokeo, can be sued for displaying false information about a Virginia man to potential employers. The Court will hear Spokeo v. Robins in its next term, which begins in October 2015.

When is a background search not a background search . . . ?

In a thoroughly reasoned and illustrative opinion, one federal court magistrate judge recently dismissed the claims of a group of individuals who alleged they were not hired because a potential employer used LinkedIn’s “Reference Search” feature to obtain background information. Sweet v. LinkedIn Corporation, NDCA, No. 5:14-cv-04531, April 14, 2015.

New Technology Clashes with Statutory Requirements: Why Clicking "I Agree" May Not Be Enough

Since December 2014, retail giant Michaels Stores, Inc. (Michaels) has been hit with two class action lawsuits regarding its background-check process. The lawsuits allege that Michaels violated the Fair Credit Reporting Act (FCRA) by having job applicants click an "I Agree" box consenting to the terms and conditions of an online job application, which include an authorization to obtain a consumer report on the applicant.

Despite Recent EEOC Loss, Employers Must Be Cautious With Criminal Background and Credit Screenings

The U.S. Court of Appeals for the Fourth Circuit recently upheld a district court’s grant of summary judgment dismissing a U.S. Equal Employment Opportunity Commission (EEOC) legal action contending that a company’s policy of using criminal background and credit history checks in its hiring process disproportionately excluded African American applicants

‘Tis the (Retail) Season, Part II: Conducting Background Checks on Seasonal Workers

During the upcoming holiday season, many companies—especially those with retail operations—will be looking to expand their available workforce by hiring seasonal workers. Unfortunately, many of these temporary workers will be hired without much scrutiny. Although this approach is understandable given the frenzied pace of the holiday season, it is a risky proposition. Seasonal employees often have more direct customer contact and less supervision than regular employees have during the rest of the year. The wrong hire with a problematic background can create major liability. In short, short-term seasonal employees can have long-term implications. For this reason, many forward-thinking retailers have begun implementing a more robust background check process for seasonal hires.

Faulty Background Checks Can Be Very Costly

Unfortunately, many employers conduct background checks on applicants and employees without crossing the Ts and dotting the Is. Recent lawsuits and settlements totaling millions of dollars highlight the risk for employers who ignore the requirements of the Fair Credit Reporting Act (“FCRA”). It is mystifying how some employers seemingly are not aware of these 18?year?old requirements.

Misrepresentation on employment application may override state criminal background check law.

Most employers understand the importance of compliance with the federal Fair Credit Reporting Act (FCRA) as it applies to background checks and applicant records. However, employers also must recognize the interplay of state law restrictions on the use of background checks in the application and employment process.

EEOC, FTC Provide Tips on Use of Employment Background Checks

The U.S. Federal Trade Commission (“FTC”) often looks to the Equal Employment Opportunity Commission (“EEOC”) for advice and assistance on issues related to the various laws, executive orders, and regulatory guidelines that affect the workplace. Therefore, it is no surprise, and perhaps even past time, that the FTC and EEOC co-authored two documents (Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know) explaining how the agencies’ respective laws apply to background checks performed on job applicants and current employees.

Employee Background Checks: The First Step Before Determining Wages

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.

EEOC and FTC Issue Joint Publications on Background Checks

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.

10 Easy Rules for Background Checks in Hiring

The EEOC -- can't live with 'em, can't live without 'em.

What's the Latest on Criminal Background Checks

Here’s a quick overview of the latest developments, followed by a more detailed discussion:

U.S. Senate Considering Ban on (Nearly) All Credit Checks

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.

Federal Bill Prohibiting Credit Checks on Employees, Job Applicants Introduced in Senate

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.

Strike Two – The EEOC's Failed Attempts To Limit Background Checks

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.

EEOC Ordered to Pay Big Fees for Pursuing Criminal-History Suit

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.

Strike Two – The EEOC's Failed Attempts To Limit Background Checks

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.

EEOC's Criminal Background Guidance After a Year and a Half in the Field: Results are Mixed

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.

EEOC Loses (Again) On Criminal-Background Checks

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.

Now, More Than Ever: Make Sure Your Criminal Background Policy is "Individualized" Enough

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.

EEOC Again Goes After Criminal Background Checks

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.

EEOC Files Suit Over Employer Use of Criminal Background Checks

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.

Employment Law Update: Background Becomes Battleground

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.

Seattle City Council Votes to Limit Inquiries into Job Applicants’ Criminal Backgrounds

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.

CREDIT CHECKS IN EMPLOYMENT: WHERE EMPLOYERS STAND AFTER KAPLAN

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.

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.

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.

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.

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.

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.

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.

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 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 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 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.

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?

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.’”

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.

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.

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?
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