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PPT: First Glance: The EEOC's New Guidance on Using Criminal Records
 

PPT: First Glance: The EEOC's New Guidance on Using Criminal Records

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On April 25th, the Equal Employment Opportunity Commission issued new “enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil ...

On April 25th, the Equal Employment Opportunity Commission issued new “enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.”

This is the first guidance on this topic issued by the EEOC in more than 20 years. It reflects the EEOC’s recent litigation trend of trying to limit employers’ use of criminal records in making employment decisions.

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  • OK, maybe HR credibility isn’t the same as “street cred,” but, hey, I am delivering two sessions at HRSouthwest this year.I’m a 20-year HR veteran and an SPHR. I’m also 2011 President-Elect for the Fort Worth Human Resource Management Association. Additionally, I am currently a director for the Texas Association of Licensed Investigators.In the last two years, I’ve delivered over 40 presentations to SHRM chapters and conferences and dozens of webinars on a variety of topics. Hit up my website if you need a speaker for an upcoming event. http://imperativeinfo.com/speaker-availability/All that said, I’m not a lawyer and I’m especially not YOUR lawyer. Wiser people than I (me?) decline to express their opinion for fear of some knucklehead misapplying what they said and getting them sued. Just realize that you didn’t pay for this webinar and you might only be getting what you paid for. Be prudent. Use this information to start a discussion in your organization and with your own legal counsel. If they disagree with me, go get another lawyer.There is a healthy dose of the Gospel According to Coffey (in other words, opinion) in this webinar and handout. I hope it is helpful to you!
  • As we review the issues surrounding employers’ use of criminal records, it is important to keep in mind why we care about applicants’ criminal histories. Employers run criminal background checks to protect the public, their employees, their assets, and their reputations. Many also run background checks to ensure legal and regulatory compliance. Ultimately, employers have a much higher risk of lawsuits stemming from employees’ negligent or malevolent behavior than they might face from applicants who believe that they weren’t treated fairly during the employment process. However, both risks can be mitigated through reasonable policies and procedures and good management training.
  • BadHireDays.com has many cases studies about individuals with criminal histories who later brought injury to their employer or others – and how employers can avoid making the same mistakes.
  • Employees of NASA contractors working at Jet Propulsion Laboratories sued NASA when the agency changed the background check requirements for contractors to meet those of regular employees. The contractors claimed that NASA’s inquiry into their past activities, including questions about their prior illegal drug use, violated their privacy. The US Supreme Court ruled in favor of NASA and recognized the need for background checks, even those asking very invasive questions, citing the widespread use of background checks by private employers.
  • This is a bad idea that is also being promoted by the EEOC. We talk more about it later.
  • President Johnson signed Title VII in 1964 and President Bush signed amendments to it in 1991. Also, be aware that other laws such as the ADA, ADEA, and GINA protect other groups of workers against employment discrimination.
  • The EEOC was formed by the Civil Rights Act of 1964 and is charged with enforcing the Act. They are a law enforcement agency – not a rule-making body. The only power they have is to use federal funds to finance investigations and bring civil suits against employers. They still have to prove their cases in court like any other plaintiff. Courts have sometimes used the EEOC’s guidance documents in their interpretation of Title VII but they have also criticized both the agency and their guidance documents.
  • Normally, the EEOC has five commissioners and until the end of April 2012, there were three Democrats (who leaned more pro-labor) and two Republicans (who leaned more pro-employer). Commissioner Stuart Ishimaru left the Commission to head the CFPB’s Office of Minority and Women Inclusion (OMWI), leaving the Commission equally split between Republicans and Democrats. Many have speculated that this is why the Commission released the new guidance when it did on April 25th. Had it been one week later, the Commission would likely have been unable to approve the guidance thanks to gridlock.
  • All but two states also have agencies that are able to bring suits to enforce Title VII. Individuals who believe that have been wronged can also file suit, after they have first filed a charge with the EEOC.

PPT: First Glance: The EEOC's New Guidance on Using Criminal Records PPT: First Glance: The EEOC's New Guidance on Using Criminal Records Presentation Transcript

  • First Glance: The EEOCs New Guidance on Using Criminal RecordsMike Coffey, SPHRPresidentImperative Information Group
  • First Glance: The EEOCs New Guidance on Using Criminal Records Get good legal adviceMike Coffey, SPHRPresidentImperative Information Group
  • Why Employers RunBackground Checks
  • Why Employers RunBackground Checks
  • Why Employers RunBackground Checks
  • The federal Fair Credit Reporting Act governs background checks.
  • Disclosure must be made and writtenauthorization received.
  • The employer must provide informationprior to making an adverse decision.
  • The employer must provide additionalnotice after taking the adverse decision.
  • FCRA claims are becoming popularclass action items.
  • The FCRA limits what can be reported inbackground checks.
  • State/Local Restrictions on Employers (Ban the Box laws) Massachusetts: Employers may not inquire about criminal records on the initial written application. Minnesota, Connecticut & New Mexico: Public employers may not inquire about criminal records on the initial written application. Hawaii: Employer may inquire only after an offer of employment is made More than 2 dozen cities have passed similar ordinances including Philadelphia, Baltimore, Memphis, and San Francisco
  • Title VII of Title VII of the of 1964 the Civil Rights Act Civil Rights Act of 1964
  • Protected Classes under Title VII  Race  Color  Sex  National origin  Religion
  • EEOC Federal law enforcement agency Not rulemaking agency 2,500+ employees $379 M budget (down $7.3 M from 2011)
  • EEOC 5 commissioners  Currently 2 Democrats and 2 Republicans  Comm. Ishimaru left 4/30/2012 to join CFPB  Gridlock expected until after the November elections
  • Other Title VII Enforcement State fair employment practices agencies can also enforce Title VII Individuals can also file individual lawsuits Courthouse
  • Title VII of the Civil Rights Act of 1964 Disparate Treatment - intentional discrimination against someone in a protected class where there is not a bona fide occupational qualification.
  • Title VII of the Civil Rights Act of 1964 Disparate impact - seemingly neutral policies without business necessity that have adverse impacts on protected classes (“disparate impact” - see Griggs v. Duke Power Company)  “Business necessity” –  manifest relationship to employment role  with no viable alternatives to qualify
  • Title VII of the Civil Rights Act of 1964 Criminal Records Brightline Rule: Have you ever been arrested?  No  Yes (please deposit your application in the trashcan on your way out)
  • Title VII of the Civil Rights Act of 1964When reviewing criminal records, an employer must considerthe Green factors (Green v. Missouri Pacific Railroad): – Nature of the offense, – The time elapsed, – The nature of the job, In nonconviction cases, employers should also consider the reasonable likelihood that the person engaged in the underlying conduct.See the previous EEOC Guidance: EEOC Policy Statement on the Issue of Conviction Records under Title VII of the CivilRights Act of 1964 and Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII ofthe Civil Rights Act of 1964
  • EEOC Activity 99,947 charges filed in 2011 (20% increase since 2005) E-RACE initiative looks for systemic discrimination (disparate impact claims) July 26, 2011 - hearings on the use of criminal records in employment (“a new protected class”)
  • EEOC Activity02/22/2012 Strategic Plan for FY 2012-2016 Combat employment discrimination through strategic law enforcement. Prevent employment discrimination through education and outreach Deliver excellent and consistent service through a skilled and diverse workforce and effective systems.
  • EEOC v. Freeman Companies
  • EEOC v. Kaplan Higher Education Corp.
  • Title VII of the Civil Rights Act of 1964
  • EEOC v. PeopleMark
  • State EEO LawsMany states have their own equal employmentopportunity or human rights laws.  Washington state and Hawaii will not allow employers to consider any criminal records older than ten years.  6 states have “job-relatedness” requirements for the consideration of criminal records
  • New EEOC Enforcement Guidance
  • New EEOC Enforcement Guidance
  • New EEOC Enforcement Guidance
  • New EEOC Enforcement Guidance
  • Criminal Offenders not a protected class
  • Green factors+ Individualized Assessment
  • Nature & Gravity
  • Time Passed
  • Nature of the Job
  • Individualized Assessment
  • Individualized Assessment
  • Individualized Assessment
  • Individualized Assessment
  • Individualized Assessment
  • Individualized Assessment
  • Individualized Assessment
  • Individualized Assessment
  • Individualized Assessment
  • Individualized Assessment
  • Add individualized assessment on the employment application?Following your application’s state-specific criminal historyquestion, Coffey suggests that you consider adding: If you believe that the information above does not adequately reflect the circumstances surrounding the case(s) listed above or if there is additional information not included elsewhere on this application that you believe the Company should be aware in evaluating your fitness for this position, please provide that information below:
  • Add individualized assessment on the employment application?Following your application’s state-specific criminal historyquestion, Coffey suggests that you consider adding: If you believe that the information above does not adequately reflect the circumstances surrounding the case(s) listed above or if there is additional information not included elsewhere on this application that you believe the Company should be aware in evaluating your fitness for this position, please provide that information below:
  • The employer must provide informationprior to making an adverse decision.
  • Add individualized assessment to theFCRA pre-adverse action notice? Insert: If you believe that there is additional information that may help us better evaluate your fitness for this position in light of the information in the attached consumer report, please contact us immediately.
  • Individualized Assessment Factors
  • Is individualized assessment always necessary?
  • Adjudication Relevance MatrixPosition-specific (or job class-specific?) criminaloffense guidelines (in line with state laws): Yes: Eligible for hire (Y) Corporate Review: Management review of offense, time that has passed, and applicant’s whole picture (C) No: Not eligible for hire (N) SHOULD BE LIMITED IN APPLICATION
  • Adjudication Relevance Matrix OFFENSE 0 - 3 YEARS 3 - 7 YEARS 7 YEARS + (0 - 36 MONTHS) (37 - 84 MONTHS) (85 + MONTHS)Alcohol Consumption/Possession Y Y YAlcohol Sale to Minor C C YArson N N NAssault/Battery/Domestic Violence (FELONY) N N CAssault/Battery/Domestic Violence (MISD) C C YAuto Theft N N CBurglary/Breaking and Entering/Burglars Tools N N CChild Abuse/Molestation N N NChild Neglect/Child Endangerment (FELONY) N N NChild Neglect/Child Endangerment (MISD) N C YChild Support Y Y YComputer Crimes C C CContributing to Delinquency Minor C C CCredit Card Abuse/Fraud/Skimming N N NCriminal Contempt C Y YCriminal Mischief/Damage to Property/Vandalism N Y YDisorderly Conduct C Y YDrug Possession/Drug Abuse/Poss. of Drug Paraphernalia (MISD) N C YDrug Sale/Distribution/Manufacturing/Felony Possession N N CEmbezzlement N N NEvading Arrest/Failure to Identify as Fugitive/Fugitive C C YFailure to File Tax Return C Y YFalse Report C Y Y
  • Relation to Other Federal Laws
  • Relation to State Laws
  • Ban the Box (backdoor version)
  • Questions?Mike Coffey, SPHRPresidentImperative Information Groupcoffey@imperativeinfo.com877-473-2287