Eeoc strategic plan & legally defensible background checks
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Eeoc strategic plan & legally defensible background checks

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The EEOC has issued new Guidance on the use of arrest and conviction records for employment. This presentation highlights the changes and provides some insight for employer compliance.

The EEOC has issued new Guidance on the use of arrest and conviction records for employment. This presentation highlights the changes and provides some insight for employer compliance.

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Eeoc strategic plan & legally defensible background checks Eeoc strategic plan & legally defensible background checks Presentation Transcript

  • EEOC Strategic Plan & Legally Defensible Background Checks Select speakers or Phone on Webinar tab The Webinar will begin shortly. While you are waiting please register for blog updates: http://info.safehiringsolutions.com
  • Quick Update SHS Webinars  Provide education  Announce new products Upcoming webinars:  Should Background Screening Be an Ongoing Process? 7/10/12  How to Conduct Comprehensive Volunteer Background Checks 7/19/12 New products:  iRefCheck ready for testing  Existing employees setting/report  ATS “paperless” process
  • Facilitators Mike McCarty  CEO SHS  Metro Nashville PD  Domestic Violence Division  Breaking the Cycle  iRefCheck
  • Background  EEOC approved 2012-2016 strategic plan 4/25/12 by 4-1 vote  Guidance effective immediately  No public comment  Game plan for the EEOC field offices
  • Guidance replaced:  1987 EEOC Policy Statement regarding conviction records  Zero tolerance policies  3 pronged approach  1990 Policy Guidance on the Consideration of Arrest Records
  • Commissioner Constance SmithBarker Lone Dissenter…  “Utter lack of transparency”  “Public has been intentionally shut out of this process”  Places a burden on business owners  Exceeds the authority for a regulatory commission  Not congress  Not courts
  • This will not be the end…. Further restrictions coming:  Use of credit reports  Other barriers to employment
  • Disparate Impact  EEOC demonstrates the employer’s facially neutral policy has disparate impact on a protected group  Burden is on employer to show policy is:  Job related  Consistent with business necessity  EEOC interested in who is being denied based on background check
  • Case law…  Green v. MO Pacific Railroad (1977)  Zero tolerance convictions  3 pronged approach  El v. SEPTA  Murder 40 yrs ago  Policy no violence  3rd Circuit Ct in favor of SEPTA
  • Old Guidance… Employer could demonstrate Title VII compliance by using 3 factors with background checks: 1. Nature & gravity of crime; 2. Time that has passed since conviction/completion of sentence; and 3. Nature of job held or sought
  • New Guidance Now employers may satisfy Title VII by using internal policy if it is “narrowly tailored”  Not clear what this looks like  Guidance references “targeted screens” based on Green factors (3 prongs)  Allow applicant/employee to explain the circumstances of the conviction
  • Guidance list several considerations:  Facts & circumstances surrounding the offense or conduct  Self reporting from candidate?  How to verify?  Evidence candidate performed same type work, post conviction, with same or different employer with no incidents of criminal conduct  Employment or character references
  • iRefCheck can help comply… iRefCheck:  Automated reference checks  Competency-based surveys  Candidate driven  Fast. Inexpensive. Reliable  Can be used to gather more information from candidates on criminal records
  • Arrest records require furtherinvestigating….  Arrest alone may not be used to deny employment  Certain minority groups arrested at disproportionately higher rate  FCRA restricts reporting of arrest records to 7 yrs  Several states do not allow reporting of non-convictions  If arrested & pending  Candidate dishonest
  • Where do we stand?  5/9/12 Congress amended Commerce, Justice and Science appropriations bill to prohibit the EEOC from using any funds to enforce guidance  Legal challenges- EEOC looking for some test cases
  • Considerations…. Review criminal background screening policies  Use of arrest/ non-convictions  Green 3 pronged test  Zero tolerance policies
  • FCRA….Make sure following required steps: Pre-Adverse Action  Copy of background screening report  Summary of Your Rights under FCRA Adverse Action Letter
  • FCRA Pre Adverse Action LetterChange “If you believe that there is additional information that may help us better evaluate your fitness for this position, please contact us immediately.” Could help satisfy EEOC new Guidance
  • Questions? Use chat box Sign up for blog: info.safehiringsolutions.com For Sample FCRA Pre-Adverse and Adverse Action Letters contact: John Hinesley Manager of Compliance & Research John.hinesley@safehiringsolutions.com Thank You for Participating