Is Your Criminal Background Check Policy Consistent with the EEOC's Updated Guidance?
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The document summarizes a presentation given by attorneys on the Equal Employment Opportunity Commission's (EEOC) updated guidance on considering arrest and conviction records in employment decisions. It discusses key aspects of the guidance, including how it relates to disparate treatment vs. disparate impact claims and the need for criminal background check policies to be job-related, consistent with business necessity, and include individualized assessments of applicants. It also provides examples of how to apply the EEOC guidance when making hiring decisions for bouncer, DJ and bartender positions at a night club.
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Is Your Criminal Background Check Policy Consistent with the EEOC's Updated Guidance?
- 1. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® Is Your Criminal Background Check Policy Consistent with the EEOC’s Updated Guidance? Presented by: Stephen C. Mitchell smitchell@laborlawyers.com Matthew R. Korn mkorn@laborlawyers.com www.laborlawyers.com Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC
- 2. Overview • What is the EEOC thinking? • What is disparate impact? • Who is Green and what’s an “individualized assessment”? • Do I really have to consider applicants with felony convictions? • Is my policy consistent with the Guidance? Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 3. The EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII • Consolidates and supersedes prior policy statements • “Designed to be a resource” – Employers, Employment Agencies, Unions – Applicants and Employees – EEOC Enforcement Staff • El v. Southeastern Pennsylvania Transportation Authority(SEPTA), 479 F.3d 232 (3d Cir. 2007) • Public meetings in 2008 and 2011 • Strategic Plan for 2012-2016 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 4. Disparate Treatment v. Disparate Impact Disparate Treatment Disparate Impact • Different treatment based on race or national origin. • Similarly situated. • Must be intentional. • Inconsistencies in hiring process. • Legitimate, non-discriminatory reason. • Pretext. • Facially-neutral policy. • Disproportionate effect on members of a protected class. • Statistical evidence. • Validation. • Job related and consistent with business necessity. • Individualized assessment. • Less discriminatory alternative. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 5. Application Questions? • Have you ever been convicted? • Have you been convicted of a felony in the past ten years, or a misdemeanor involving theft or violence in the past five years? • Job Related and Consistent with Business Necessity? • No questions? Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 6. Arrests vs. Convictions • Arrests. – Independent investigation. – Underlying conduct. • Convictions. – Validation. – Job related and consistent with business necessity. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 7. Validation Defense • Uniform Guidelines on Employee Selection Procedures – Data or analysis about criminal conduct as related to subsequent work performance or behaviors. • Is it possible to validate criminal background policies? – EEOC states that there are few studies available on this issue. – Would need to hire applicants with criminal background and determine effect on job performance or behaviors. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 8. Job Related and Consistent with Business Necessity • No Blanket Policies. • The nature and gravity of the offense or conduct, including: – Harm caused – Specific elements of the crime – Felony or misdemeanor • The time that has passed since the offense or conduct and/or completion of the sentence. • The nature of the job held or sought. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 9. Recordkeeping • Written criminal background check policy. – Used internally by hiring managers. • Job descriptions. – Essential functions. • Studies and statistics. – U.S. DOJ – Bureau of Justice Statistics. – State-specific recidivism data. • Consideration of Green factors. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 10. Individualized Assessment • Give each applicant an opportunity to provide information, which could include: – – – – – – – – The facts or circumstances surrounding the offense or conduct; The number of offenses for which the individual was convicted; Older age at the time of conviction, or release from prison; Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct; The length and consistency of employment history before and after the offense or conduct; Rehabilitation efforts, e.g., education/training; Employment or character references and any other information regarding fitness for the particular position; and Whether the individual is bonded under a federal, state, or local bonding program. • Consider information and grant waivers where warranted. • Be careful to avoid disparate treatment. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 11. Less Discriminatory Alternative • Equally effective means of reaching the same goal or business objective. – Longer period to dispute. – Different policies. • Difficult without validation, like comparing apples to oranges. • Burden on EEOC or employees. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 12. Federal and State Laws and Regulations • Federal law and regulations. – Can shield you from liability. – Can still be liable to extent exceeded. – Example – Section 19 of the FDIA. • State law and regulations. – Applications, policies may be regulated. – Title VII preempts state law. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 13. Night at the Rock’s Berry Club • Hiring: – Bouncer – Bartender – Disc Jockey Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 14. Criminal Background Check Policy • Applies to: – All applicants for all positions. • Exclusions include: – Any felony conviction within the past 10 years. – Any misdemeanor involving violence or theft within the past 5 years. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 15. Bouncer Job Description • Essential functions include: – Removing intoxicated patrons from the night club. – Friendly customer service. – Ability to stand for long periods of time. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 16. Bouncer Applicants – Mark, Damian, and Larry • • Clean Record. Bouncer at Hawk’s Club between 2007 and 2010, but fired for getting into a fight. • • • • Felony assault and battery in 1995. Released from prison in 1997. Misdemeanor petty larceny in 2009. Bouncer at Jo Jo’s night club since 2010 – good reference. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000 • • • • Misdemeanor simple assault in 1999. Felony armed robbery in 2006. Released from prison in 2009 for good behavior. Unemployed since 2011.
- 17. DJ Job Description • Essential functions: – Knowledge of current music and trends. – Ability to get crowd engaged. – Promotion and marketing of club. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 18. DJ Applicants – Mary, Terrence, and Gail • • Arrest for copyright infringement based on Napster downloads. DJ at Jo Jo’s night club since 2006. • • • Felony grand larceny in 2003. Released from prison in 2005. DJ at Hawk’s Club since 2005 – good reference. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000 • • Misdemeanor fraudulent check conviction in 2009. Arrested for drunk and disorderly conduct and resisting arrest in 2010, but no conviction.
- 19. Bartender Job Description • Essential functions: – Knowledge and enforcement of ABC laws. – Cash handling and receipts. – Creating a fun and friendly environment. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 20. Bartender Applicants – Sam, Julie, and Tom • • Clean record. Bartender certification, but no experience. • • • Misdemeanor petty theft in 2009. Bartender at Jo Jo’s night club since 2010. Employee of the year at Jo Jo’s, two years in a row. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000 • • • Felony embezzlement conviction in 2006. Released from prison in 2008. Working at fast food chain since 2009.
- 21. Revised Criminal Background Check Policy • Consider running criminal background reports after interviewees have been identified or after extending contingent offer of employment. • Consider running criminal background checks on particular jobs supported by studies or statistical evidence, and consider requesting information for specific offenses. – Bouncer? • Felony conviction involving violence in the past five years. – Bartender? • Felony conviction involving theft in the past five years. – Disc Jockey? • No exclusions based on criminal history. • Make an individualized assessment. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 22. To-Do List • Review your current policy and job classifications to determine job relatedness. • Revise policy and document your considerations and supporting information. • Create a process to allow applicants to submit individual information. • Perform legal review of revised policy. • Train hiring managers and decision makers. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
- 23. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® If you have any questions, please feel free to contact us. Thank You Presented by: Stephen C. Mitchell & smitchell@laborlawyers.com Matthew R. Korn mkorn@laborlawyers.com Fisher & PhillipsLLP www.laborlawyers.com ATTORNEYS AT LAW Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville ® Solutions · Phoenix Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia at Work · Portland · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com Phone (803) 255-0000
Editor's Notes
- Three types of validity: (1) criterion-related; (2) content; or (3) construct validity. Must have documentation of validity.Criterion-related validity: Evidence of the validity of a test or other selection procedure by a criterion-related validity study should consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance.Content validity: Evidence of the validity of a test or other selection procedure by a content validity study should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated. Construct validity: Evidence of the validity of a test or other selection procedure through a construct validity study should consist of data showing that the procedure measures the degree to which candidates have identifiable characteristics which have been determined to be important in successful performance in the job for which the candidates are to be evaluated.
- TheEEOC Guidelines recommend removing questions regarding criminal history from applications altogether. Many employers use such questions to determine whether an applicant is honest, or lies, about criminal history. Lying about criminal history on an application can be a valid basis for excluding an applicant. Therefore, to the extent an employer wants to continue using questions related to criminal history, tailoring the questions to be job related and consistent with business necessity will reduce potential liability.
- Arrest: An example of an arrest record would be an applicant who was arrested for “disorderly conduct” and “resisting arrest.” While at first glance, these seem like serious offenses, our criminal justice system is built on an “innocent until proven guilty” standard. Therefore, excluding an applicant based solely on the arrest record will be unlawful under Title VII. However, an employer may lawfully exclude an applicant based on the conduct underlying the arrest.For instance, consider two applicants, both arrested for “disorderly conduct” and “resisting arrest.” The first applicant was engaged in an organized, peaceful protest, and when he was asked to leave the area by a police officer, he politely refused. The applicant also made a disparaging remark to the police officer. The second applicant was at the same protest, but started to become violent. The second applicant pushed several other protesters and when confronted by a police officer he punched the police officer. As you can tell, the conduct underlying these arrests may justify different treatment in terms of eligibility for employment.Convictions: According to the EEOC, convictions may permissibly be used to exclude applicants in two circumstances. First, an employer can attempt to validate their criminal background check policy. As will be discussed, this may not actually be possible. Second, the employer may exclude applicants based on convictions that are job related and consistent with business necessity.
- Validation can be expensive and require the assistance of experts. Hiring all applicants, or allowing employees to remain, who have certain convictions that are job related and consistent with business necessity is not practical, considering the potential liability for negligent hiring and/or retention.
- An example of a conviction that may be job related and consistent with business necessity would be a recent embezzlement conviction for an applicant who is applying to be a bookkeeper at a law office. Conversely, the same conviction may not be relevant for the receptionist position. The length of time passed since the conviction is also relevant and should be supported by studies or recidivism data, where available. Unfortunately, the EEOC did not provide any guidance on where the line should be drawn in terms of how much more likely an applicant must be to commit the same crime than an applicant without criminal history in order to properly exclude the applicant with the history.
- It is important to document the steps your company has taken to draft a criminal background check policy. This includes evidence that you considered each job description/classification, keeping copies of any studies or statistics upon which you relied, and documenting your consideration of the Green factors.
- An example of an individualized assessment would be an employee who was convicted of felony assault and battery eight years prior to applying for a job as a youth counselor based on a bar fight in college. That applicant presented evidence that since his release from prison five years ago he has worked at the local YMCA as a camp counselor and has received great performance evaluations and has a good reference. The Guidance requires employers to consider this type of evidence when deciding whether to exclude an applicant.
- The less discriminatory alternative issue is directly related to validation and the Uniform Guidelines we discussed earlier, as you must have data on the effectiveness of the policy to determine whether a “less discriminatory alternative” is equally effective at achieving business goals. As we said, this is very difficult to prove/disprove.Example: EEOC may claim that an extended appeal period gives an employer more time to catch mistakes. Or, review of references will show employee is likely to be a good employee. Both are true. Employer must be ready to show why the alternative method is not as effective. Some reasons may be that the employer can’t hire fast enough, or that the additional review is too expensive.
- In a 2010 decision letter, and again in its Guidance, the EEOC pointed out that if a state enacts licensing and registration requirements that go beyond the minimum standards of federal law, such provisions will be subject to scrutiny under Title VII because Title VII preempts state and local laws to the extent they “purport to require or permit the doing of any act which would be an unlawful employment practice” under the statute. 42U.S.C. Section 2000e-7.
- Mark: Would be eligible under original policy.Damian: Would not be eligible under original policy because of misdemeanor petty larceny within five years. However, this conviction is not likely job related, as the bouncer does not have cash handling responsibilities at the club. Further, upon an individualized assessment, Damian has been successfully performing the same job at a competitor club for the past two years and has a good reference.Larry: Larry would not be eligible for employment under the original policy due to his felony armed robbery in 2006. This type of offense (involving violence) may be job related as a bouncer must remove intoxicated patrons without injuring them, and subjecting the bar to a negligent hiring claim. The length of time since the conviction is 6 years, so this is probably on the line. There are probably not sufficient mitigating facts to justify his employment.
- Mary: Arrest for copyright infringement may be job related, but there would have to be an underlying investigation into the conduct. Further, Mary has been a DJ at a competitor club.Terrence: Terrence would be excluded under the original policy based on his felony grand larceny within the past ten years. However, theft convictions may not be relevant to a DJ position, without cash handling responsibility or access to financial information. The length of time, nine years, since the conviction is also a consideration. Further, Terrence has a good reference and an individualized assessment may make him eligible.Gail: Would be excluded under original policy for misdemeanor fraudulent check conviction. However, as noted above, theft may not be relevant. Arrest record and underlying conduct must be verified by independent investigation.
- Sam: Sam would be eligible under either policy, but has no experience.Julie: Julie would be excluded under the original policy. Her conviction is probably job related, but it’s only a misdemeanor, which should be taken into consideration. Also, individualized assessment must be done and she appears to be a good employee. Tom: Tom would be excluded under the original policy based on his felony embezzlement conviction. This is a fairly recent, and likely job related conviction. Tom does not have enough mitigating factors to justify eligibility.
- Discuss pros and cons and practical considerations of running check after interviewees have been identified or after contingent offer of employment.The studies and statistics referenced here are different from studies demonstrating a link between the conviction and job performance. Here, we are looking more for studies or statistics regarding recidivism, or likelihood to re-commit crime, and the length of time that employers should consider from conviction to application.The fact that your company performs an individualized assessment should be noted on written policy.
- If your policy currently excludes “all felony convictions” or “all felony convictions within the past 10 years,” you should look at the job classifications and determine how the policy can be revised to make the exclusions job related and consistent with business necessity.Revisions to the policy should incorporate the factors we discussed above.Your hotline or other procedure for allowing applicants to submit information is evidence that you were attempting to make an individualized assessment. If an applicant does not send information, of course you do not have to consider anything.Train hiring managers and decision makers on your revised policy and on how to make an individualized assessment and avoid disparate treatment in the process.