Hiring Without Hitting an EEOC Land Mine
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1 Hiring Without Hitting an EEOC Land Mine Moderator: Richard A. Plewacki, Partner, Benesch Panelists: Mark G. Gardner, CEO, Avatar Management Services, Inc. Peter N. Kirsanow, Partner, Benesch 1
2 EEOC Criminal Background Check December 2012 Hearing Before USCCR Bars Blanket Exclusions for Criminal Convictions Bars Blanket No Felony Hiring Standard No Safe Harbor Very Aggressive Definition of Employer and Employee EEOC Criminal Background Check Genesis Attorney General Holder s Prisoner Reentry Council Griggs v. Duke Power Disparate Impact Theory Not Issued for Public Comment NASA v. Nelson S. Ct. does not consider checks an arbitrary selection criteria 2
3 EEOC Criminal Background Check EEOC Aggressive Enforcement EEOC v. Peoplemark Class action lawsuit against staffing agency Claimed disparate impact W.D. Mich. Hit EEOC with $752,000 sanctions EEOC v. Pepsi $3.13 Million settlement Pepsi policy barred employment to those convicted of minor offenses EEOC Criminal Background Check EEOC Position Policy or practice of excluding applicant s based on criminal conviction unlawful unless: Job related Justified by business necessity 3
4 EEOC Criminal Background Check Employer Must Show: 1. Conviction is Job Related and Consistent With Business Necessity a) Disqualification based on conviction alone is unlawful 2. Must Analyze: a) Nature and gravity of offense b) Time since conviction/completion of sentence c) Nature of job 3. Employer has burden of showing that the policy operates to effectively link specific criminal conduct and its dangers with the risks inherent in the duties of a particular position 4. Must conduct an individualized assessment for each applicant No guidance on any of the above EEOC Criminal Background Check Problems with EEOC Guidance May Exceed Statutory Authority EEOC does not have rulemaking authority May violate APA Harms intended beneficiaries May violate Griggs (felons not protected class) Promulgated without determination that convictions have disparate impact on recognized protected classes versus similarly situated non offenders Disparate impact based on national data can t be reconciled with individualized assessment EEOC itself sometimes sues employers for not performing criminal background checks (EEOC v. ABM Industries; $5.8 million sexual harassment case) 4
5 EEOC Criminal Background Check Problems For Employers No Safe Harbors Preempts conflicting state and local laws Including licensing, thereby preventing employers from operating Preempts federal regulations if compliance creates disparate impact or requirement not relevant Ambiguity Makes no concessions for predictive factors pertaining to respect for authority; attendance; following direction; reliability Racially balanced workforce is not a defense Individualized assessment replaces objective standards with subjective ones Potentially unfair Increases risk of disparate treatment lawsuits Contrary to EEOC general philosophy Stay Legal and Avoid Risky Drivers Mark G. Gardner, CEO, AvatarFleet 5
6 Hiring Good Drivers Ideal Qualities Safe Stable Capable Reliable Flexible Friendly Efficient Responsible Conscientious 11 Hiring Good Drivers Typical Data Age CDL MVR Drug-Free Education Experience Home Base Work History Felony Record Ideal Qualities Safe Stable Capable Reliable Flexible Friendly Efficient Responsible Conscientious 12 6
7 Hiring Good Drivers Typical Data Age CDL MVR Drug-Free Education Experience Home Base Work History Felony Record Inference Ideal Qualities Safe Stable Capable Reliable Flexible Friendly Efficient Responsible Conscientious 13 Hiring Good Drivers Typical Data Age CDL MVR Drug-Free Education Experience Home Base Work History Felony Record* Inference Ideal Qualities Safe Stable Capable Reliable Flexible Friendly Efficient Responsible Conscientious 14 7
8 Hiring Good Drivers Typical Data Age CDL MVR Drug-Free Education Experience Home Base Work History Felony Record* Inference Could there be more? Ideal Qualities Safe Stable Capable Reliable Flexible Friendly Efficient Responsible Conscientious 15 Ideal Truck Driver CAN DO WILL DO KNOWLEDGE K V VALUES SKILLS S M MOTIVATIONS A P ABILITIES PERSONALITY 8
9 Ideal Truck Driver CAN DO KNOWLEDGE DOT rules & regulations Service expectations Dispatch procedures SKILLS How to safely drive How to provide customer service How to complete paperwork ABILITIES Stamina Eye hand coordination Physically fit Ideal Truck Driver WILL DO VALUES Conscientious Safety driven Caring & considerate MOTIVATIONS Over-the-road driving Independence Work with people PERSONALITY Friendly Risk-averse Compliant 9
10 Know what you can change! CAN DO You can change K V WILL DO You can t change S M A P NIIC Voyager/Velocity 2012 Winter Advisory Board Meeting- PAGE 19 Hire for what you can t change! CAN DO KNOWLEDGE DOT rules & regulations Service expectations Dispatch procedures SKILLS How to safely drive How to provide customer service How to complete paperwork ABILITIES Stamina Eye hand coordination Physically fit WILL DO VALUES Conscientious Safety driven Caring & considerate MOTIVATIONS Over-the-road driving Independence Work with people PERSONALITY Friendly Risk-averse Compliant 10
11 In The Easy World Assess for traits that can t be changed The Select O Meter Avoid problem drivers Avoid risk-takers Avoid turnover 21 We Live In The Hard World There is no Select O - Meter You need a process The Select O Meter 22 11
12 You Need A Recruitment Process Attract more applicants Define your brand Define best-fit candidates Create a unique message Get that message out there 23 You Need a Selection Process More Data Traditional data Values Data Motivations Data Personality Data Best- Fit 24 12
13 A More Complete Selection Process Typical Data CDL MVR Drug-Free Education Experience Home Base Work History Criminal Record Values? Motivations? Personality? Ideal Qualities Safe Stable Reliable Flexible Friendly Efficient Responsible Conscientious 25 Discover key values Standardized Pre-written questions Behaviorally-anchored Objectively scored Structured Interview 26 13
14 Realistic Job Preview Discover key Motivations Depict the true nature of the job Show the good, the bad & the ugly Provide a self-assessment survey Is this really what I want to do? 27 Pre-Employment Assessment Discover key Personality Traits Standardized Job-related Predictive Validated 28 14
15 Steps To A More Complete Process Minimum Qualification Questions Realistic Job Preview Application Review MVR Review Employment Verification Pre-Employment Assessment Structured Interview Road Test 29 Steps To A More Complete Process Minimum Qualification Questions Realistic Job Preview Application Review MVR Review Employment Verification Pre-Employment Assessment Structured Interview Road Test Post-conditional offer Physical & Drug Test Felony Record Review 30 15
16 A More Complete Selection Process Minimum Qualification Questions Realistic Job Preview Application Review MVR Review Employment Verification Pre-Employment Assessment Structured Interview Road Test Post-conditional offer Physical & Drug Test Felony Record Review Important: Use a compensatory model 31 A More Complete Selection Process Minimum Qualification Questions Realistic Job Preview Application Review MVR Review Employment Verification Pre-Employment Assessment Structured Interview Road Test Post-conditional offer Physical & Drug Test Felony Record Review Important: Use a compensatory model Ideal Qualities Safe Stable Reliable Flexible Friendly Efficient Responsible Conscientious 32 16
17 Risks & Rewards Legal Limitations Good Business decisions What s the Cost of Bad Process? Time and expense needed to defend Fines Legal fees Civil judgments Damaged reputation 34 17
18 What s the Cost of One Bad Driver? Injuries Accidents Cargo Losses Vehicle Damage Government Intervention; CSA Loss of Customer Confidence Strife, Drama & Headaches 35 Stay Legal and Avoid Risky Drivers Implement a standardized process Eliminate your blanket ban on felony convictions Add a realistic job preview/self-assessment Add a pre-employment personality assessment Add a structured behaviorally-anchored interview Use a compensatory decision model 18
19 Thank you for joining us today! Mark G. Gardner Chief Executive Officer Avatar Management Services, Inc Bavaria Drive E. Macedonia, OH Phone: Peter N. Kirsanow Partner Benesch 200 Public Square #2300 Cleveland, OH Phone: Richard A. Plewacki Partner Benesch 200 Public Square #2300 Cleveland, OH Phone: Adjournment Follow the Annual Convention at #2014TCA 2015 Annual Convention Gaylord Palms March 8-11,
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APPLICATION PROCESS BS&E Co., Inc. is an equal opportunity employer and is dedicated to providing a safe, drug-free workplace for all its' employees. These standards require applicants to provide certain
Employers Guide to Apprenticeships
Employers Guide to Apprenticeships An Apprenticeship is created through partnership. Incorporating on-the-job training with an employer and technical training with a training provider. These two elements
Applicants will receive a job description and person specification for the role applied for.
Recruitment, selection and disclosure policy and procedure 1 Introduction The Bedford Charity (The Harpur Trust) is committed to providing the best possible care and education to its pupils and to safeguarding
Please Print Name: Last First Middle. Address: Street City State Zip. On what date would you be available to start work?
Today s Date: Please Print Name: Last First Middle Home Phone #: ( ) E-mail Address: Cell Phone#: ( ) SSN #: Where Message can be left, if no phone: ( ) Position(s) Desired: Director Assistant Director