The Equal Employment Opportunity Commission’s (EEOC) 2012 guidance on an employer’s use of criminal background checks is an example of administrative overreach and should be withdrawn, according to panelists testifying before a House subcommittee panel on Tuesday. Rep. Tim Walberg (R-MI), Chairman of the House Subcommittee on Workforce Protections, said the EEOC’s guidance is “flawed” and criticized the agency for denying the public the opportunity to comment on the guidance before it was issued two years ago.
Background Checks
A Tale of Two Cities: Rochester Follows Buffalo to Ban the Box
On May 22, 2014, one year after the city of Buffalo, NY, passed its ordinance restricting employers’ inquiries into criminal history, its neighbor across the Niagara isthmus, Rochester, NY, enacted a similar “ban-the-box” law. Rochester’s legislation comes just one week after Baltimore, MD, enacted its own ban-the-box law, suggesting that the “ban-the-box movement” is maintaining its steam and that municipalities will remain key players in the movement. Now, a total of seven cities – Baltimore (MD), Buffalo (NY), Newark (NJ), Philadelphia (PA), Rochester (NY), Seattle (WA), and San Francisco (CA) – and four states – Hawaii, Massachusetts, Minnesota, and Rhode Island – have banned the box for private employers. Many other jurisdictions are considering such legislation for private employers and already have enacted such legislation for public employers and their vendors.
Sixth Circuit Upholds Dismissal of EEOC Suit Against Employer Screening Applicants Based on Credit History Information
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.
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 & FTC Issue Joint Guidance on Employment Background Checks
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
Weathering the Sea Change in Fair Credit Reporting Act Litigation in 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
Bill Prohibiting Pre-Employment Credit Checks Introduced in Senate
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.
Death of the Box: Why the Criminal History Question on Job Applications Is Heading Towards Extinction
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?”
EEOC Clarifies Guidance on Criminal Background Checks
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.
Fair Credit Reporting Act Amendment Offers Important Protections From Lawsuits Targeting Background Check Programs
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.
Federal Court Dismisses EEOC Title VII Disparate Impact Suit Over Alleged Discriminatory Background Checks Without Trial
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.