The EEOC has issued updated guidance for employers on the use of arrest and conviction records in employment decisions. The guidance clarifies that excluding applicants solely due to an arrest record violates Title VII, as arrest records do not prove criminal conduct. It also indicates that blanket exclusions of all applicants with criminal records are prohibited unless required by law. Employers can justify exclusions related to convictions by validating screening policies or conducting individualized assessments of applicants considering the nature of the offense, time elapsed, and job duties. Employers are advised to review hiring policies and provide opportunities to explain conviction circumstances.
This presentation covers Affirmative Action Regulations, which are administered by the Department of Labor's Office of Federal Contract Compliance Programs. Topics covered include:
• Recent changes and a number of new Executive Orders
• "EEO Is the Law" Poster Supplement
• Browning-Ferris Industries of California NLRB Decision
• Compensation Manager Interviews during OFCCP Audit
DISCLAIMER:
By using this site and accessing the information presented by CowanPerry, PC., you understand that there is no attorney client relationship between you and CowanPerry, PC. The site and information contained therein should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
The information contained on this site is summary in nature and does not include all conditions, limitations, or exceptions that may be applicable to a particular situation. Every effort has been made to present current information without inaccuracies; however, errors, additions, deletions, and changes in the laws or procedures may occur and could make the information out of date or inaccurate. CowanPerry, PC does not assume any liability whatsoever for the "up-to-dateness", accuracy and completeness of the information.
On April 25, 2013, Ward and Smith, P.A. held a Labor and Employment Seminar at the Crowne Plaza in Asheville, North Carolina. We are pleased to share the PowerPoint presentation from the event. The topics presented were: Criminal Background Checks, Wage and Hour Issues, Social Media, FMLA ADA and REDA Issues, Affordable Care Act, and Termination and Unemployment Claims
Human Resource Management : Constitutional and Legal FrameworkJohn Edward Estayo
Human Resource Management,
Constitutional and Legal Framework.
Mostly tackles about the Labor Law which comprises the law on termination, health safety and insurances, right to strike and right to lockout ,
Sexual Harassment and Etc.
This presentation covers Affirmative Action Regulations, which are administered by the Department of Labor's Office of Federal Contract Compliance Programs. Topics covered include:
• Recent changes and a number of new Executive Orders
• "EEO Is the Law" Poster Supplement
• Browning-Ferris Industries of California NLRB Decision
• Compensation Manager Interviews during OFCCP Audit
DISCLAIMER:
By using this site and accessing the information presented by CowanPerry, PC., you understand that there is no attorney client relationship between you and CowanPerry, PC. The site and information contained therein should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
The information contained on this site is summary in nature and does not include all conditions, limitations, or exceptions that may be applicable to a particular situation. Every effort has been made to present current information without inaccuracies; however, errors, additions, deletions, and changes in the laws or procedures may occur and could make the information out of date or inaccurate. CowanPerry, PC does not assume any liability whatsoever for the "up-to-dateness", accuracy and completeness of the information.
On April 25, 2013, Ward and Smith, P.A. held a Labor and Employment Seminar at the Crowne Plaza in Asheville, North Carolina. We are pleased to share the PowerPoint presentation from the event. The topics presented were: Criminal Background Checks, Wage and Hour Issues, Social Media, FMLA ADA and REDA Issues, Affordable Care Act, and Termination and Unemployment Claims
Human Resource Management : Constitutional and Legal FrameworkJohn Edward Estayo
Human Resource Management,
Constitutional and Legal Framework.
Mostly tackles about the Labor Law which comprises the law on termination, health safety and insurances, right to strike and right to lockout ,
Sexual Harassment and Etc.
Criminal Background Checks in the Hiring Process: The Escalating Risks CT
Employers’ use of criminal background checks in the hiring process is creating growing exposure to liability on several fronts. The Equal Employment Opportunity Commission (EEOC) is pursuing the issue aggressively as a centerpiece of its enforcement initiatives, asserting that the practice has a disparate impact on minority applicants, which violates Title VII of the Civil Rights Act of 1964.
Through our tenure as the leader in business and legal compliance, CT has amassed an unsurpassed wealth of knowledge. We share this institutional expertise with you with our live seminars and webinars.
The Labor Laws Compliance System (LLCS) refers to the integrated framework of voluntary compliance and enforcement of labor laws and social legislations issued pursuant to the rule-making, visitorial and enforcement power of the DOLE Secretary.
Criminal Background Checks in the Hiring Process: The Escalating Risks CT
Employers’ use of criminal background checks in the hiring process is creating growing exposure to liability on several fronts. The Equal Employment Opportunity Commission (EEOC) is pursuing the issue aggressively as a centerpiece of its enforcement initiatives, asserting that the practice has a disparate impact on minority applicants, which violates Title VII of the Civil Rights Act of 1964.
Through our tenure as the leader in business and legal compliance, CT has amassed an unsurpassed wealth of knowledge. We share this institutional expertise with you with our live seminars and webinars.
The Labor Laws Compliance System (LLCS) refers to the integrated framework of voluntary compliance and enforcement of labor laws and social legislations issued pursuant to the rule-making, visitorial and enforcement power of the DOLE Secretary.
Employee RightsWhat Every Fraud Examiner Needs to KnowJanuaryTanaMaeskm
Employee Rights
What Every Fraud Examiner Needs to Know
January/February 2001
By Kevin P. Prendergast, J.D.
The phrase "getting off on a technicality" is well-known in the criminal law arena. If a law enforcement officer is found to have violated the rights of a suspect during a search or arrest, the suspect could walk free, regardless of his guilt or culpability. That same concept applies in the employment law setting as well.
For example, I was recently involved in a case involving an employee in a highly safety-sensitive position who was terminated for failing an alcohol screening. At the arbitration, the employee freely admitted to having consumed a 12-pack of beer prior to reporting to work. The employee was involved in an altercation on the job and was ordered to immediately go for the screening, which he couldn’t pass.
However, the employee, as a union member and a public employee, was protected by union contract, civil service rules, statutes, and the U.S. Constitution. His supervisors, when ordering the alcohol screen, had failed to follow the technical rules governing screening. This employee prevailed on the technicality, triumphantly returning to work with a year’s worth of back pay. Both supervisors were later disciplined by the employer who was quite irritated at having to sign a check for the back pay.
If you’re asked to investigate employee misconduct, you’ll need to know the laws that limit or even prohibit certain types of investigations. If you don’t, you could become embroiled in some nasty courtroom battles.
Ten years ago, the debate was whether an employee’s locker or desk could be searched. Today, the arguments are over the sanctity of hard drives, e-mail messages, and voice mail.
Employment litigation can have a tremendous effect on a company’s bottom line. Even when a firm prevails in court, the cost of managers tied up in depositions and trial preparation can be substantial. Avoid landing in court by knowing the laws and the latest interpretations.
As an initial matter – prior to commencing an investigation – you need to know what type of employment relationship exists between the employer and employee. This step will often set the ground rules to which you will need to adhere. Once you begin the investigation, you need to be aware of the applicable laws so that you can at least spot potential issues and avoid problems. You don’t need to be an expert but you do need to know all written procedures to avoid the "technicality trap."
Define Employment Relationship
All employment relationships aren’t created equal. The nature of the relationship will set limitations on the type of investigation to be performed. Investigations may be limited by written agreements, union contracts, civil service rules, or constitutional limitations applicable to public employees.
Define Term Employment
Employees may be hired for a definite period of time. During that time, they may only be terminated for "just c ...
Staying up to date on the latest changes in employment law is critical for any business owner or HR professional to avoid expensive legal complications, ensure regulatory compliance and cultivate a positive workplace culture.
Our Employment Solicitors, Joanna Smye and Claire Berry deliver a pre-recorded and on demand update webinar that discusses the most important employment law changes on the horizon for 2023/24, reviews key cases from the last six months and provides practical advice on the important learning points to take away.
EEOC Issues Updated Guidance On Employer Use Of Arrest And Conviction Records
1. Labor Employment Law Blog: The EEOC Issues Updated Guidance on Employer Use of ... Page 1 of 3
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05 | 4 | 2012Posted By
The EEOC Issues Updated Guidance on Employer Use of Arrest and Conviction
Records
By James Hays, Jonathan Sokolowski, Ashley Hirano, and Gregg Fisch
On April 25, 2012, the United States Equal Employment Opportunity Commission (“EEOC”) issued
updated enforcement guidance on employers’ use of arrest and conviction records when making
employment decisions under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC’s
guidance (the “Guidance”) is intended to codify and build on its prior policies concerning employers’
use of criminal records. Nevertheless, the Guidance, which is effective immediately, supersedes the
EEOC’s prior policies on this issue.
Conviction Records
The EEOC’s previous guidance explained that excluding individuals from employment on the basis of
their conviction records has a disparate impact on race and national origin. Under Title VII,
employers may not maintain a policy that results in a disparate impact unless they can demonstrate
that such a policy is “job related and consistent with business necessity.” Accordingly, it has been the
EEOC’s long-held position that a criminal record exclusion is unlawful under Title VII unless an
employer can show that the exclusion, for the position in question, satisfies the “business necessity”
defense. The EEOC’s prior guidance indicated that an employer can establish the business necessity
defense by showing that it considered the following three factors: (1) the nature and gravity of the
offense; (2) the amount of time elapsed since the offense and/or completion of the sentence; and (3)
the nature of the position being sought in relation to the offense.
However, the Guidance now provides a new explanation of how an employer “may” be able to justify
a criminal record exclusion based solely on the factors previously identified. Specifically, the
employer potentially can satisfy the requisite standards when the employer implements a targeted
screen that is “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the
position in question.” The Guidance identifies two situations in which employers will “consistently”
meet the business necessity defense: (a) the exclusion policy has been validated in accordance with
the Uniform Guidelines on Employee Selection Procedures; or (b) the exclusion policy is based on the
factors listed above and the employer provides an “individualized assessment” for those people who
were excluded by the screen.
http://www.laboremploymentlawblog.com/351021-print.html 5/7/2012
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With respect to validation, the Guidance explains that while there may be social science studies
demonstrating a link between convictions and future job performance that could assist in validating
some employment exclusions, “such studies are rare.” The Guidance thus indicates that the necessary
data to perform a validation study would be difficult to obtain.
Accordingly, employers are counseled to apply the other situation and perform an individualized
assessment in conjunction with the factors outlined above in order to satisfy the business necessity
defense. Pursuant to the Guidance, an individualized assessment would generally include a meeting
with the individual to provide him/her with an opportunity to explain the circumstances of the
conviction. Once an individual provides the employer with additional information, the employer then
must consider whether or not the exclusion, as applied to that individual person, is still job related and
consistent with business necessity.
Arrest Records
The Guidance distinguishes between an employer’s reliance on arrest records as opposed to
conviction records. Specifically, while convictions constitute reliable evidence that the underlying
criminal conduct occurred, arrest records are not proof of criminal conduct. Thus, employers cannot
deny an employment opportunity exclusively on the basis of an arrest record.
Blanket Exclusions
The Guidance prohibits blanket policies that exclude everyone with a criminal record from
employment. According to the Guidance, such policies will not be job related and consistent with
business necessity, and therefore, on their face, will violate Title VII, unless the policy is required by
federal law.
Significantly, while employers’ compliance with federal laws and regulations that restrict the
employment of individuals with certain criminal backgrounds will shield them from Title VII liability,
compliance with state and local laws does not provide the same protection. The Guidance explains
that employers who take an adverse employment action required by state or local laws that is
inconsistent with Title VII will be required to show that such action is job related and consistent with
business necessity.
Recommendations
Employers should review their job applications and their policies concerning the use of arrest and
conviction records with counsel, and in conjunction with the “Employer Best Practices” that are
generally discussed in the Guidance. In that regard, employers should keep in mind the following best
practices to avoid Title VII disparate impact liability in their hiring/promotion practices:
• Eliminate policies that completely exclude applicants from employment based on criminal
records or arrest records;
• Develop a written policy for screening applicants and employees for criminal conduct. This
policy should:
◦ Identify the essential functions of the employers’ positions and the circumstances under
which they are performed;
◦ Determine specific criminal offenses that may demonstrate unfitness for those positions
and how those offenses might demonstrate that an individual is unfit to perform the
essential functions of those positions;
http://www.laboremploymentlawblog.com/351021-print.html 5/7/2012
3. Labor Employment Law Blog: The EEOC Issues Updated Guidance on Employer Use of ... Page 3 of 3
◦ Determine the duration of the exclusions for criminal conduct (including an opportunity
for individualized assessment);
◦ Record the justification for your policy, including making a record of the consultations
and research performed when creating this policy;
• When asking questions about criminal records, limit any inquiries to only those questions that
are job-related and consistent with business necessity;
• Ensure that all information about applicants’ and employees’ criminal records is kept
confidential;
• Train managers on this new EEOC guidance and any new employment policies that are adopted
for its implementation;
The EEOC’s guidance, “Consideration of Arrest and Conviction Records in Employment Decisions
Under Title VII of the Civil Rights Act of 1964,” is available here. The EEOC also has issued a Q&A,
which is available here.
http://www.laboremploymentlawblog.com/351021-print.html 5/7/2012