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.

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Eeoc strategic plan & legally defensible background checks

  1. 1. 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:
  2. 2. 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
  3. 3. Facilitators Mike McCarty  CEO SHS  Metro Nashville PD  Domestic Violence Division  Breaking the Cycle  iRefCheck
  4. 4. 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
  5. 5. Guidance replaced:  1987 EEOC Policy Statement regarding conviction records  Zero tolerance policies  3 pronged approach  1990 Policy Guidance on the Consideration of Arrest Records
  6. 6. 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
  7. 7. This will not be the end…. Further restrictions coming:  Use of credit reports  Other barriers to employment
  8. 8. 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
  9. 9. 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
  10. 10. 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
  11. 11. 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
  12. 12. 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
  13. 13. 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
  14. 14. 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
  15. 15. 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
  16. 16. Considerations…. Review criminal background screening policies  Use of arrest/ non-convictions  Green 3 pronged test  Zero tolerance policies
  17. 17. FCRA….Make sure following required steps: Pre-Adverse Action  Copy of background screening report  Summary of Your Rights under FCRA Adverse Action Letter
  18. 18. 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
  19. 19. Questions? Use chat box Sign up for blog: For Sample FCRA Pre-Adverse and Adverse Action Letters contact: John Hinesley Manager of Compliance & Research Thank You for Participating