The Source - EBI's Knowledge Center

Ban the Box Legislation Points to a Greater Need for Background Screening

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Many who have filled out a job application have encountered “the box” -- it’s a little square, usually located toward the end of an employment application, next to a question that asks, “Have you ever been convicted of a criminal offense?”

A spreading “ban the box” legislative push across the nation posits that asking an applicant if he/she has had a criminal history in the initial stages of hiring causes unfair discrimination toward those with previous criminal convictions. Proponents of “ban the box” legislation argue that a standard employment policy of asking if an applicant has committed a crime, in the initial stages of the application process, indirectly contributes to recidivism, and potentially causes disparate impact on protected classes under Title VII of the Civil Rights Act of 1964. Supporters contend that “ban the box” legislation will directly contribute to more equal hiring practices and, in turn, potentially lead to better communities.

The movement to enact “ban the box” legislation is growing along with federal pressure from the U.S. Equal Employment Opportunity Commission’s (EEOC) enforcement guidance report entitled, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”. The EEOC recommends in the aforementioned guidance report that companies proceed with caution when evaluating an applicant’s hire eligibility based on criminal record history. When assessing the criminal records history of an applicant’s background report, employers are advised by the EEOC to consider the job for which the applicant has applied, the amount of time that has since elapsed from the date of the criminal offense(s), as well as the nature, gravity, and scope of the criminal offense(s).            

Additionally, many counties and cities have also enacted “ban the box” legislation, or similar legislation that restricts and/or limits what employers can and cannot include on an initial employment application. The National Employment Law Project has a resource guide, updated as of November, 2012, that highlights county and city legislation.

Employers Still at Risk for Negligent Hiring Claims
Pre-employment background screening plays a more important role than ever in the hiring process now that “ban the box” legislation is sweeping the United States. It is important for employers to note that active “ban the box” legislation does not exempt employers from claims of negligent hiring -- it is certainly not a green light to remove background screening from the hiring process. Conversely, employers now have to be even more thorough in their pre-employment background screening programs because there will not be a possibility to know of an applicant’s criminal history until after the initial stages of the hiring process. Although an employer may not be able to ask an applicant up-front about his/her criminal history in the state in which the employer is hiring, that does not mean that a criminal background check should not be performed.

Background Checks more Important than Ever
Employers are given, now more than ever, the role of assessing each job position in individual terms, and of creating an individualized assessment policy that incorporates and determines which background investigation searches will need to be ordered and reviewed for each job position for which the employer recruits. It may be advisable for employers who want to maintain compliance with their jurisdiction’s “ban the box” legislation, and for employers who desire to take the lead from the EEOC’s guidance report,  to consult with accredited background screening companies to develop customized background screening packages which meet employers’ business needs for each job position.

Employment Background Investigations (EBI) works with employers globally to provide a full range of comprehensive and legally compliant criminal background check solutions.  Our "Just One Solution" suite of background screening, drug testing, occupational healthcare, and electronic form I-9 services will help reduce the risks and liabilities of a bad hire!  EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local, and international mandatory requirements.  EBI is not providing legal advice or counsel and nothing provided in this document should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their responsibilities or if they have questions on any information provided by EBI.

Use of Credit Reports not Proven to be Discriminatory in Case Filed by the EEOC

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Kaplan’s recent victory in obtaining summary judgment against the EEOC in Equal Opportunity Employment Commission Vs. Kaplan Higher Learning Edu. Corp., et al should serve as  a reminder to businesses that employment background screening, a standard pre-employment practice, can no longer be approached with umbrella-like, “one-size-fits-all” adjudication metrics.

Although the EEOC lost in this case, it is important to note that the EEOC lost on a matter of technicality regarding admissible expert testimony.  If the EEOC had been able to statistically present a disparately-affected protected class in an admissible manner, the outcome for Kaplan might have been much less favorable. Arguably, employers can avoid being brought to court in the first place if they utilize a holistic, EEOC-recommended approach to assessing background screening reports: the individualized assessment. The EEOC advises against hiring practices that do not take into consideration the entirety of an applicant’s background report, as well as the job-specific relevance of an applicant’s background report.

The Equal Employment Opportunity Commission (EEOC) brought a lawsuit against Kaplan in 2010, alleging that Kaplan’s use of credit reports in its hiring process had a disparate impact on African American applicants.

A disparate impact can be especially challenging for employers to defend, as the plaintiff in a “disparate impact” case does not have to prove a discriminatory motive; in many cases only discriminatory consequences must be established. An employment policy that is facially neutral, but in its effect or application, has an adverse impact on populations that are protected under Title VII of the Civil Rights Act of 1964, is termed legally as causing a “disparate impact”.

Legal precedent has provided that in order to establish a disparate impact claim, a plaintiff must:

“(1) identify a specific employment practice that is being challenged”

                        and

“(2) establish, through statistical means, that the identified employment practice,  'caused   the exclusion of applicants... because of their membership in a protected group’”

(Equal Opportunity Employment Commission Vs. Kaplan Higher Learning Edu.  Corp.,et al.)

The Court ruled that the EEOC failed to establish, “through statistical means” that Kaplan’s hiring practice created a disparate impact on the African American population. The EEOC used a practice of “race rating” in its efforts to establish the disparate impact statistics. The method of “race rating” involved Dr. Kevin R. Murphy assembling a team of five designated “race raters” who individually determined the race of individuals in 891 DMV photos. The Court ruled that the “race rating” technique employed by EEOC expert Kevin R. Murphy did not fulfill any of the admissible testimony requirements, as set forth in the case, Daubert v. Merrell Dow Pharmaceuticals. The requirements from Daubert, while not comprehensive, require that an expert’s theory can be tested, that the theory has a known error rate, and that the theory has been generally accepted by the scientific community. The judgment of the Court held that assembling teams to guess individuals’ races from DMV photographs was not scientifically established and was not a court-admissible method for determining disparate impact on a protected class.

Although the case against Kaplan was a loss for the EEOC, employers should feel encouraged to reassess their assessment protocols with credit reports. An umbrella hiring assessment policy for all job applicants could potentially leave an employer open to a “disparate impact” lawsuit. Evaluation of all information in the applicant’s background screening report, including but not limited to the credit history, should be assessed individually. Such hiring evaluations should remain consistent, job-specific, and a matter of business necessity.

Employment Background Investigations (EBI), professionally-accredited employment screening company, works with employers globally to provide a full range of comprehensive and legally compliant employment background check, drug testing, occupational healthcare and electronic form I-9 solutions.  EBI provides employers with the options they need to perform an individualized hiring assessment that will help reduce the risks and liabilities of a bad hire! Our "Just One Solution" suite of services  EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local, and international mandatory requirements.  EBI is not providing legal advice or counsel and nothing provided in this document should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their responsibilities or if they have questions on any information provided by EBI.

Background Checks Continue To Influence Key Factors In Hiring Decisions

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A recent survey of randomly selected HR professionals conducted by the Society of Human Resource Management (SHRM) asked the question.  “In general, when making a hiring decision about a job candidate, which are the most important factors influencing the final decision to hire a particular candidate over another?”   The survey revealed 9 key factors, of which 8 are directly supported by a comprehensive background check.  Responses to this question confirm the critical role that background checks play in the decision making process for new hires.

The following are responses based on order of influence within the final decision making process:

• 87% - Previous work experience directly applicable to the job
• 86% - A good fit with the job and organization
• 78% - Specific skills expertise needed for the job (e.g., technical skills, communication skills)
• 78% - Performance during the interview (e.g., professional demeanor, good communication skills)
• 60% - Favorable reference background check results (e.g., verification of employment history)
• 60% - Education directly applicable to the job
• 59% - Favorable criminal background check results (e.g., criminal history)
• 51% - Certifications directly applicable to the job (e.g., CPA, PHR, PMP)
• 19% - Favorable credit background check results (e.g., credit history)

Two-thirds of the most influential factors are supported and can be properly assessed through conducting a comprehensive background check on potential new hires.  Knowing more about your candidate up front is critical to determining proper qualifications, experience, skill level, and even potential security or safety risks for a complete candidate evaluation.  A comprehensive background check will take a closer look into the following core areas:

Past Employment Experience
Previous employment experience and performance can be a great indicator of future performance.  A thorough employment verification should never be taken lightly and employers should never rely on a candidate’s resume or job application for this information.  Connecting the employment history dots and looking for potential fraud is critical and a thorough verification should be conducted with all relevant past or even current employers.

In a down economy or within a competitive job market, pressure on job-seekers is even higher as record numbers of candidates are vying for a significantly reduced number of jobs. Candidates typically use creative methods to enhance their work experiences: create longer work histories with a particular employer; stretch position titles such as Administrative Assistant into Operations Manager; and expand work responsibilities to separate them from the competition.

Here are a few ways candidates are getting more creative with providing previous work history:  

• Providing only the year of a start and end date creates the perception of longevity at a past employer or eliminates a "gap" in employment
• Stretching the dates of employment at one employer to cover employment at an undisclosed company that may not provide a favorable reference
• Lying about the reason for separation from a past employer
• Exaggerating job titles to reflect greater job responsibilities and work experience
• Failing to disclose the nature of employment as an intern or a part-time position
• Using the name of recognized global brands as an employer where the candidate was employed under an affiliate contract or through a part-time staffing firm
• Providing exaggerated levels of income to obtain a higher starting pay rate
• Listing fictitious overseas employment in hopes that it will not be verified

Candidate fraud is costly to a company’s bottom line from: loss of productivity due to unqualified employees; additional recruiting and on boarding costs for replacement hires; and the cost in training, time and effort for your staff to verify each candidate’s employment history.  Thorough and detailed interviews need to be conducted for all relevant employers and supervisor references for potential employers to get the complete facts around candidate experience.  This will help ensure that the candidate is a good fit for the job and your organization.


Proper Education and Credentials
For many positions, education credentials play a key factor in the domain knowledge a candidate possesses in a particular area of study.   Think about an unqualified engineer responsible for designing airplanes or at the controls of a nuclear plant; or a physician with no professional medical education diagnosing patients.  This seems pretty outrageous; however, there are over 2,615 known diploma and accreditation mills identified by Verifile Limited within a 2011 Accredibase Report.  These diploma mills provide fraudulent or unaccredited degrees to individuals for just a few dollars and include little to no course work.  Padding or manufacturing education credentials provide a way for candidates to separate themselves on their application in hopes of being more competitive or even to qualify for a higher salary.  Here are a few tactics that candidates use to pad or even embellish their education credentials:

• Lying about obtaining a high school diploma or GED certificate
• Providing a degree from post-secondary school where a candidate only attended and never graduated
• Listing a different or additional degree from an institution to pad credentials
• Padding transcripts or grade point averages
• Providing a fraudulent degree from a well-known institution
• Obtaining a degree from a diploma mill that offers unaccredited degrees with little to no course work
• Padding honorarium certifications or extracurricular involvement while attending school
• Listing a fictitious overseas education in hopes that it will not be verified

The practice of lying about education credentials leads to higher turnover, production loss, concerns for public safety and even higher wages.  Education credentials should always be verified directly by the institution, no matter if an applicant provides a copy of their diploma or even a transcript.

Applicable Certifications
Certain positions may require certification, continuing education or a license issued by a governing body or association that represents a particular industry or profession.   Certifications can range from a commercial driver’s license (CDL), certified public accountant (CPA), successful completion of a professional engineering exam (PE), holding a certain rank from the military or obtaining a certificate in Human Resources such as Senior Professional in Human Resources (SPHR) or other credentials.  These types of certifications may be a requirement of federal or state law to practice professionally, work in a certain industry, or obtained as part of experience or tenure in a professional career or required continuing education to maintain their professional certification.  Certifications provide an additional level of education, training and professional commitment to support a candidate’s expertise and technical skills.  All are supported by a professional governing body where an individual’s license or certification can be verified.  Employers should never take an applicant’s certification or license credentials at face value and should always verify its existence through the issuing body.  Hiring professionals in certain security and safety sensitive positions may be required by law and hiring such individuals without proper verification could result in heavy fines, sanctions or even criminal penalties to employers, if not verified.   Applicants looking to elevate themselves on their application or resume may use such credentials as separating factors for professional experience.

Here are a few things that employers need to keep in mind when verifying credentials or a license held by an individual:

• Understand that a professional license may be required by government law to practice in certain professions
• Never rely on a candidate’s title or professional designation at face value
• Only verify the validity and accuracy of an applicant’s credentials/license directly through the issuing body or originating source
• Verify if the date of issue matches the candidate’s claims along with noting the expiration date of the certification or license
• Note current status and type of license obtained through the issuing body
• Obtain any disciplinary actions taken against an individual or license
  
  

Criminal Background Checks
Criminal background checks are a vital part of the screening process for employers striving to achieve due diligence for the purposes of increasing workplace security, safety, and reducing the potential of negligent hiring litigation.  Criminal background checks that support this goal should be comprehensive and comply with all international, federal, state and local laws.  A comprehensive background check should include a thorough search of criminal records within all areas where a candidate has lived, worked and even attended school.  A thorough search should also include an electronic criminal database search to uncover potential criminal offenses committed outside of a subject’s residential movement patterns.  An electronic criminal database includes records from all 50 states and includes information from the Department of Corrections, Department of Public Safety and Multi-state Sex Offender databases.  Additional information such as FBI, U.S. Marshal, U.S. Customs, U.S. Department of Justice, U.S. Secret Service, DEA fugitive and most wanted files is also included.  All information reported from the database needs to be verified from its original reporting source for proper compliance with the Fair Credit Reporting Act (FCRA).

When analyzing criminal information as part of the decision making process, employers should always be mindful of the following factors associated with the crime and the position being applied for.  Employers are encouraged by the Equal Opportunity Employment Commission (EEOC) to consider the “green factors” when analyzing criminal data as it relates to employment decisions. 

1. The nature or gravity of the offense or conduct;
2. The time elapsed since the conviction and/or completion of the sentence; and
3. The nature of the job sought or held

On April 25, 2012, the EEOC issued enforcement guidance through its publication titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”  Employers using criminal history information within their decision making process should develop a documented policy and process when evaluating such information to ensure compliance with EEOC regulations.

The Use of Credit History
Credit reports are a critical element of the background screening process for many employers. Banking, finance, security, public safety and the pharmaceutical industry are just a few industries that rely heavily on credit reports for making a hiring decision.  Consider a candidate for a government position who has defaulted on a government backed student loan or possesses tax liens against them.  What about an employee that has fiduciary responsibility over company funds, check writing authority, or access to large amounts of cash?  Consider an employee that is granted a company credit card and struggles to manage their own personal credit within acceptable limits.  What about an employee that has access to customer credit card information or confidential consumer information which could lead to potential identity theft?  A credit report may give insight into a candidate’s stability and trustworthiness for a specific position, although there is no proven correlation to a candidate’s credit score and their ability to perform a job.  For that reason, a credit score is not part of an employment credit report.

Proper use of credit report information within the hiring decision process is imperative to avoid discrimination and legal liability.  Each report should be reviewed on an individual basis and employers should provide a candidate/employee with an opportunity to respond to derogatory information found within their credit history, since many times there are unavoidable circumstances which lead to poor credit.  Create a policy that is consistent when using credit reports as part of the screening process and be aware of potential restricted use within certain states.

Specific state laws have been enacted for responsible credit report use for employment purposes.  As of the publication date of this article, California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington either prohibit or restrict employers from using such information at a certain time within the hiring process or restrict the use of credit reports based on position or industry.  Employers should refer to their corporate legal counsel and active legislation within their state for proper use.

Additional Credentialing
Certain industries such as healthcare, childcare, security, transportation and banking may require specific screening due to federal and/or state law or may be required due to the safety and security risks within a particular industry or specific profession.  Specific background screening components such as screening against the FBI database, the need for fingerprinting, bonding or the search of domestic and international sanction lists may be a required within the screening process.  Other requirements may include yearly screening of criminal history, driving records, credit evaluation or a check against fraud databases.  Pre-employment or ongoing drug and alcohol testing or a regime of physical exams or fitness tests are mandatory for specific positions in certain industries as well.  It’s important that employers have a firm understanding of these requirements within their particular industry for proper compliance.

Conclusion
By incorporating a comprehensive and compliant background screening program you can properly assess, screen and credential your future employees and alleviate the overwhelming challenges, risks and liabilities of making a bad hiring decision.  It is important that all employers work with their legal counsel to develop a policy that is legally compliant and within EEOC guidelines.  Proper assessment, credentialing and validation of a candidate’s attributes and skills will help to ensure you find the right candidate for the right job and ultimately add to the future success of your company.

Employment Background Investigations works with employers across the nation and around the world to provide a full range of comprehensive and legally compliant background check solutions to help reduce the risks and liability of a bad hire.  EBI can help design a program that is comprehensive, compliant, and timely by using a combination of county, state, federal and national electronic database resources for a complete criminal background check solution.

EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international legal requirements.  All content provided by EBI is published for the convenience of its readers and should never be deemed as legal guidance or advice.  Always consult your legal counsel for specific advice on local laws and industry regulations.

If you found this information useful, select the button listed below and access more industry news, resources and tips from EBI, a NAPBS Accredited screening firm and global leader in the background screening industry.

EBI to Present At 2012 Gulf Coast Symposium on Human Resource Issues

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Employment Background Investigations, Inc (EBI) Chief Knowledge Officer, Robert Capwell, will present an education session at the Gulf Coast Symposium on Human Resource Issues in Houston, Texas on Wednesday, May 9^th at 3:45pm titled - Critical Employment Background Screening Resources for HR Professionals in Texas.

Discussion topics within Mr. Capwell's presentation will include searching criminal records and sex offender databases in the state, an overview of education and employment fraud, and using social media for employee screening.   Capwell’s presentation will also highlight the complexities of navigating state and EEOC regulations for proper compliance as well as following FCRA guidance when conducting employee background checks.  In light of the recent updates to the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records, Mr. Capwell will dedicate a portion of his session reviewing how these changes impact the employment decision-making process.

EBI’s Regulatory and Compliance Department is dedicated to working diligently on Capitol Hill and with other regulatory agencies to keep our clients informed about legislative and regulatory changes that affect our industry.  Richard Kurland, President and CEO, stated that, “It is EBI’s commitment to our industry and clients which guides us in providing essential information to ensure compliance within the screening process for HR professionals.”  The Gulf Coast Symposium on Human Resource Issues will be held May 9-10, 2012 at the Reliant Center in Houston, Texas.

EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international mandatory requirements.  EBI will continue to update you on any further action or information available regarding this topic.

The EEOC’s Recent Guidance on the use of Arrest and Conviction Records Leaves Questions for Employers

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In the wake of the EEOC’s 4-1 decision to approve the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” employers are urged to take a fresh look at their application and assessment protocols when dealing with arrest and conviction information when making hiring-decisions.  Employers need to understand that the EEOC’s guidance does not prohibit the use of such information as part of their pre employment screening process; however, employers will need to take a much closer look at their procedures when inquiring about and assessing the use of arrest and conviction information as it relates to job-relatedness and business necessity.  The EEOC’s enforcement certainly comes with much ambiguity and leaves many unanswered question for employers. There will certainly be further questions and challenges from employers and interested stakeholders on proper use.  For now, employers can reference the “Enforcement Guidance” on the EEOC website along with a Q&A section available for employers.  The Enforcement Guidance also offers examples of individualized assessments that are consistent with meeting Title VII regulations.  “Section VIII. Employer Best Practices” also provides insight into general considerations, developing policy, questions regarding criminal records, and confidentiality of such information.  Industry experts have already started to weigh-in on the EEOC’s Guidance; please refer to the following document published by Seyfarth Shaw LLP., titled “How Should Employers Use Criminal History in Employment Now That The EEOC Has Issued Enforcement Guidance?” for further insight.

EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international mandatory requirements.  EBI will continue to update you on any further action or information available regarding this topic.

All information contained herein is provided by Employment Background Investigations, Inc. (EBI) solely for the convenience of its clients and readers. EBI is not providing legal advice or counsel and nothing provided within this post should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their legal responsibilities or if they have questions on any information provided by EBI.

Summary of EEOC’s Guidance on the use of Arrest and Conviction Records for Employment Purposes

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Over the past several months, the Equal Employment Opportunity Commission (EEOC) has taken a closer look at the use of arrest and conviction records when used for employment purposes.  The purpose of the EEOC’s Enforcement Guidance is to consolidate and update previous EEOC guidance documents regarding the use of such information as not to violate Title VII of the Civil Rights Act of 1964. This Guidance focuses on employment discrimination based on race and national origin and discusses the use of both arrest and conviction records.  The Guidance builds on the longstanding court decisions and existing guidance documents that the EEOC has issued over twenty years.  In light of an employer’s increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments, the Commission has decided to update and consolidate in this new Guidance all of its prior policy statements about Title VII and the use of criminal records in employment decisions.  Thus, this Enforcement Guidance will supersede the Commission’s previous policy statements on this issue.  The Commission intends for this Guidance to be used by employers considering the use of criminal records in their selection and retention processes.  You can obtain a complete copy of the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 on the EEOC’s website.  There is also a link to a Q and A section on their website for additional information. 

Further information is also available through EBI’s partnership with Seyfarth Shaw LLP.  The firm has already published commentary and guidelines regarding the EEOC’s new enforcement.  You can reference this information by visiting their blog The EEOC Releases New Enforcement Guidance On Arrest and Conviction Records In The Hiring Process.   The following information is from the summary of the EEOC’s new Guidance. 

Summary of the EEOC Enforcement Guidance 

The Guidance discusses the differences between arrest and conviction records. 

• The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. 
• In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision. 

The Guidance discusses disparate treatment and disparate impact analysis under Title VII.

• A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability)
• An employer’s neutral policy(e.g., excluding applicants from employment based on certain criminal conduct) may  disproportionately impact some individuals protected  under  Title  VII,  and  may  violate  the  law  if  not job  related  and business consistent with necessity (disparate impact liability).
• National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.
• Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity" defense are as follows:
• The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
• The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green .v. Missouri Pacific Railroad, 549 F.2d 1 158 (8th Cir. 1977)). The employer's policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).

Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.

State and local laws or regulations are preempted by Title VII if they "purport” to require or permit the doing of any act which would be an unlawful employment practice" under Title VII. 42 U.S.C.5 2000e-7.

The Guidance concludes with Best Practices for Employers.

Employment Background Investigations, Inc. (EBI) will provide additional information as it becomes available to employers.  Please refer to the complete text of the EEOC’s Enforcement Guidance for additional information.  EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international mandatory requirements.  EBI will continue to update you on any further action or information available regarding this topic.  EBI is not providing legal advice or counsel and nothing provided within this post should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their legal responsibilities or if they have questions on any information provided by EBI.

EEOC To Provide Guidance On The Use Of Criminal Records For Employment Purposes

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Over the past several months, Employment Background Investigations (EBI) has provided our clients and readers with updates and commentary regarding the EEOC’s focus on the use criminal records and credit history as it relates to background screening and the hiring process.  The EEOC has conducted several meetings regarding this matter and provided an opportunity for public comment after its July 26^th meeting in 2011.  EBI, along with the National Association of Professional Background Screeners (NAPBS) and other employer associations and stakeholders continue to lobby for the open and sensible use of criminal records and credit history information to enable employers to make informed hiring decisions.  Using such information can help guide employers, highlight the potential risks of workplace violence, negligent hiring and retention liability, and alert employers to potential risks of fraud, theft and embezzlement. 

On April 25^th, the Equal Opportunity Commission (EEOC) is expected to vote and release new enforcement guidance as it relates to the use of arrest and conviction records for employers.  This will be the Commission’s first policy statement since the ramp up of the Commission’s E-RACE initiative released in late 2008. 

On April 26^th, EBI’s legal partner and background screening legal expert, Pam Devata, from SeyFarth Shaw LLP, will be hosting a one hour FREE webinar on Thursday, April 26, 2012 at 2:30 pm EDT to provide a comprehensive analysis of the EEOC’s new guidance and provide employers with steps to take to help mitigate the risks and challenges with compliance under Title VII and the EEOC’s guidance. 

We hope you can join the webinar, please register below!

EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international mandatory requirements.  EBI will continue to update you on any further action or information available regarding this topic.  EBI is not providing legal advice or counsel and nothing provided within this post should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their legal responsibilities or if they have questions on any information provided by EBI.

EEOC Focus On The Use Of Criminal Records For Employment

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On August 1, 2011, EBI sent our clients and newsroom readers a blog post titled, “Synopsis Of EEOC Meeting - Arrest And Conviction Records As A Barrier To Employment".  This article included an overview of the meeting that took place at the Equal Employment Opportunity Commission’s (EEOC) headquarters in Washington, DC on July 26th.  The focus of this meeting was titled “Arrest and Conviction Records as a Barrier to Employment”.  Considering the current economic climate and the continued focus on reintegrating ex-offenders back into the workplace, the EEOC is taking a harder look at policies regarding an employer’s use of criminal records as part of the background screening and employment decision and retention process.  Please click on the link provided above for further details regarding this meeting.

Industry Efforts to Educate the EEOC
After the conclusion of the meeting, the EEOC decided to establish a public comment period of 30-days to allow all interested parties an opportunity to provide additional comment in regards to this meeting.  Employment Background Investigations, Inc. (EBI), along with the National Association of Professional Background Screeners (NAPBS) feels it is critically important to further educate the EEOC and other interested parties on the overwhelming need to utilize criminal records information as part of the employment and retention decision-making process.  In addition, there is a need to educate the EEOC on current regulations that govern the use of such information and regulate employers, and protect consumers through the Fair Credit Reporting Act (FCRA) and other state laws.  Employers need to understand that there has been no action taken by the EEOC at this time, and no further announcement of next steps has been made by the Commission.  This is a critical opportunity for the background screening industry and employers to provide critical input during this discovery process.  We have provided a link to EBI’s response in regards to the public comment period for your review.  Our response is closely aligned with our industry and other interested associations and third-parties.  Please take a moment to read the article and fully understand our position on this matter as an advocate of background screening and the services we provide our clients.  In addition, NAPBS has also provided comment and invited Commissioner Victoria Lipnic from the EEOC to speak at our Mid-year meeting which will take place in Orlando, Florida this fall.

What You Can Do As An Employer
As an employer, you need to be heard and remind the EEOC about why you utilize criminal records in your employment decisions.  They need to clearly understand the significant risks and costs of workplace violence, fraud, theft and a need to protect vulnerable populations within the workplace.  It’s an employer’s duty to provide a safe and productive workplace for their employees.  Provided is a draft template of an Employer Response To EEOC Meeting that you may edit as you deem appropriate and print on your company letterhead.  You can mail this directly to the EEOC by using the mailing information or email address provided.  We strongly encourage you to take the opportunity to be heard and protect your rights as an employer to be able to use criminal records information in your hiring decision process.

EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international mandatory requirements.  EBI will continue to update you on any further action or information available regarding this topic.

Synopsis Of EEOC Meeting - Arrest And Conviction Records As A Barrier To Employment

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On July 20, 2011, EBI sent our clients and newsroom readers a blog post, “EEOC Meeting On The Use of Criminal Record for Background Checks.”  As a follow-up to this post, EBI is providing a synopsis of that public hearing that took place at the Equal Employment Opportunity Commission’s (EEOC) headquarters in Washington, DC on July 26th.  The focus of this meeting was entitled “Arrest and Conviction Records as a Barrier to Employment”.  The meeting was attended by all five EEOC Commissioners and an audience of approximately 250 to 300 interested parties which was a record attendance for an EEOC monthly meeting.  There were three panel discussions and witnesses that directly or indirectly urged the EEOC to revise its guidance on the use of arrest and conviction records in employment screening.  It was the opinion of many that one’s criminal history serves as a barrier to employment which in-turn leads to a higher rate of recidivism.  It is also the opinion of many of the witnesses and interested parties that gainful employment of ex-offenders would in-turn reduce recidivism.

The following was the focus and participants of the three panel discussions:

• “Best Practices for Employers” included representatives from the DC Central Kitchen, Portfolio Hotels & Resorts and the U.S. Office of Personnel Management.
• “An Overview of Local, State and Federal Programs and Policies” included witnesses from the Department of Justice, Office of Justice Program and the New Jersey Institute for Social Justice.
• “Legal Standards Governing Employers’ Consideration of Criminal Arrest and Conviction Records” included a Latino Justice, one attorney representing the plaintiff’s bar and another attorney loosely representing the employer community. 

The Need To Further Educate The EEOC And Interested Parties
For some time, The EEOC has been exploring the issue of the use of arrest and conviction records in employment background checks. The overall meeting presented an incomplete picture of background screening as many were left with the impression that employers may regularly use online searches or even social media to research job candidates and that an applicant had no meaningful recourse that addressed adverse action taken against them when criminal records information was being considered or used for employment purposes.  As employers are aware when they use a Consumer Reporting Agency/Background Screening Firm, this process is clearly defined by the “Fair Credit Reporting Act” and through applicant/employee notification of their “Summary of Rights Under The FCRA.”  In addition, this entire process is already regulated and monitored by the Federal Trade Commission (FTC).  The point and outcome from this meeting leaves us all to wonder if the EEOC is going to consider future time limitation on the use of criminal records information.  On the positive side, there is a further opportunity to educate the EEOC and other interested parties on the true and current best practice that employers are using background checks under federal law.

The basis of the meeting overshadowed the true use of background screening and provided no balance with witnesses presenting the advantages of background screening in terms of victims of workplace violence, theft, other crimes or safety and security risks from not screening. There was no opportunity for witnesses to fully explain the need and value of appropriately conducting criminal history checks by employers and the critical role the background screening industry plays in the hiring and retention process. 

Further Consideration For The EEOC
The EEOC enforces federal laws prohibiting employment discrimination and the commission’s main concern is whether employers are using arrest and conviction records in a manner that violates Title VII of the Civil Rights Act of 1964.  

The focus of the EEOC appears to be the Commissions’ desire to revise its guidance as a primary concern with the high rate of recidivism and the need for successful re-entry of ex-offenders.  The commission may revisit factors of job relatedness and business necessity factors which employers must take a closer look at the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred.  Additional consideration may focus on the following factors of one’s rehabilitation, individualized assessments, and the placement of timelines on length of time that criminal history records can be used.

Next Steps To Be Taken On Our Behalf
The National Association of Professional Background Screeners (NAPBS), along with EBI and other interested parties, will be filing additional comments on the outcome of this meeting directly to the EEOC.  We will keep you posted of further actions and outcome of our efforts.

Additional EEOC Resources
Employers are reminded to utilize the following resources published by the EEOC when making hiring decisions based on criminal records information.  You can find these resources located on the EEOC’s website.

EEOC Policy Statement On The Use Of Criminal Convictions

EEOC Policy Guidance On The Consideration Of Arrest Records

EEOC Policy Guidance On The Use Of Conviction And Arrest Records

Employment Background Investigations, Inc. is committed to providing employers with valuable education, news and resources around background screening, drug testing, occupational healthcare and employment eligibility.  All content provided by EBI is published for the convenience of its readers and should never be deemed as legal guidance or advice.  Always consult your legal counsel for specific advice on local laws and industry regulations.

EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international mandatory requirements. If you found this information useful, select the button listed below and access more industry news, resources and tips from EBI, an NAPBS Accredited screening firm and global leader in the background screening industry!

EEOC Meeting Scheduled July 26th on the Use of Criminal Records for Background Checks

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The Equal Employment Opportunity Commission (EEOC) will hold a meeting on the use of criminal records for employment screening purposes on Tuesday, July 26^th at 9:30 AM.  The meeting will be held at the EEOC Headquarters, 131 M Street, N.E., Washington, D.C.  20507.   

EBI would like to make employers aware of this meeting as it represents a critical step in the Commission’s adoption of policies that could significantly impact how employers use criminal background checks for employment purposes.  EBI and our background screening association, the National Association of Professional Background Screeners (NAPBS), believes it is important that we join together as users of criminal records information and share with the EEOC both how background checks enable employers to make more informed hiring decisions and the need for any forthcoming EEOC action to not hamper employers’ ability to conduct background checks to protect employees, customers and property in the workplace.  The NAPBS Board of Directors, members of the Government Affairs Committee, NAPBS legislative counsel, Montserrat Miller and other interested parties will be in attendance and will serve as advocates for continued use of criminal records within the background screening process. 

NAPBS will also be preparing comments to be submitted to the EEOC on the relevance and benefits of access to criminal history records by employers. The July 26^th meeting/hearing will be a full Commission meeting, meaning all five Commissioners and EEOC’s General Counsels will attend.  This includes Chairwoman Jacqueline Berrien, Commissioner Chai Feldblum, Commissioner Stuart Ishimaru, Commissioner Vicky Lipnic and Commissioner Constance Barker.  A formal agenda has not yet been released but it is expected that there will be multiple panels including academics, lawyers, victims’ groups (i.e., those who have been denied employment due to their criminal history), government officials, litigants from the El v. Septa case, and others.
 
Given the importance of this meeting to the industry and employers, as the role of the use of criminal records in employment screening will be the focus, employers are encouraged to add this date to their calendar and make plans to attend the hearing on July 26^th, if possible.  The meeting will be open to the public and it will not be webcast or televised, although a transcript will be available after the meeting.  EBI will continue to lobby on behalf of employers to ensure that the use of criminal records for employment purposes can be used within the current guidelines and regulations of the Fair Credit Reporting Act (FCRA).  EBI will continue to update you on the progress and outcome of this meeting.

Employment Background Investigations, Inc. is committed to providing employers with valuable education, news and resources around background screening, drug testing, occupational healthcare and employment eligibility.  All content provided by EBI is published for the convenience of its readers and should never be deemed as legal guidance or advice.  Always consult your legal counsel for specific advice on local laws and industry regulations. 

If you found this information useful, select the button listed below and access more industry news, resources and tips from EBI, an NAPBS Accredited screening firm and global leader in the background screening industry!