NEW EEOC GUIDANCE. What employers need to know about the use of criminal

Transcription

1 NEW EEOC GUIDANCE What employers need to know about the use of criminal records in the hiring process

2 Introductions Christine Cunneen, CEO Hire Image Garen Dodge, Partner Jackson Lewis

3 Recertification Credit This program, ORG-PROGRAM , has been approved for 1 (General ) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute. Please be sure to note the program ID number on your recertification application form. For more information about certification or recertification, please visit the HR Certification Institute website at "The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute's criteria to be pre-approved for recertification credit."

4 Background Who: 5 Commissioners 3 (D), 2 (R) Voted 4-1 to pass new guidance What: Consolidates and supersedes all other guidance in this area When: Effective immediately 4/25/2012 Why: Many factors ERACE Initiative, El v. Septa, 479 F.3d 232 (3rd Cir 2007)

5 Background Where can I find the guidance? n.cfm EEOC question and answer document ction.cfm

6 CASE LAW Green v. Missouri Pacific RR El v. SEPTA PeopleMark Freeman NASA v. Nelson

7 Defending DI Claims Old Guidance Under Title VII, an employer may justify a practice that results in a disparate impact by demonstrating a business necessity for that practice. An employer could demonstrate business necessity under the 1987 Policy by showing it considered three factors in making its decision

8 1987 POLICY (Green Factors) The nature and gravity of the criminal offense(s) The time that has passed since the conviction and/or completion of the sentence The nature of the job held or sought

9 NEW ENFORCEMENT GUIDANCE New Guidance provides examples of an applicant s or employee s proper or improper disqualification based on criminal record

10 TARGETED SCREENS MAY SATISFY BUSINESS NECESSITY Employer may satisfy its Title VII obligations by using an internal policy if it is narrowly tailored This means a demonstrably tight nexus to the position in question. The Guidance refers to targeted screens that are based on the Green factors but EXCEPTION, NOT BEST PRACTICE

11 Green on Steroids The nature and gravity of the criminal offense(s) The time that has passed since the conviction The nature of the job sought

12 Defending DI Claims The number of offenses for which the individual was convicted; Age at time of conviction or release from prison (point of redemption); Evidence that the individual performed the same type of work, post-conviction, without incidents of criminal conduct; The length and consistency of employment history before and after the offense; Risk of recidivism Use of social studies

13 TARGETED SCREENS ACCOMPANIED BY INDIVIDUALIZED ASSESSMENT Guidance prefers that targeted screen be accompanied by notice to the individual under scrutiny and an individualized assessment of the individual and the crime and the position in question Allow the applicant or employee to explain the circumstances of the conviction

14 TARGETED SCREENS ACCOMPANIED BY INDIVIDUALIZED ASSESSMENT Guidance lists eight possible topics of consideration in an individualized assessment, including: The facts and circumstances surrounding the offense or conduct; 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; and Employment or character references and other information regarding the individual s fitness for the particular position.

15 VALIDATION STUDY MAY SATISFY BUSINESS NECESSITY Guidance allows a validation study on an employer s use of criminal background information meeting EEOC appears doubtful that data exists to allow an employer to conduct such a validation study

16 ARREST RECORD REQUIRES INQUIRY INTO CONDUCT ALLEGED Arrest record standing alone may not be used to deny an employment opportunity Allows an employer to make an employment decision based on the conduct underlying the arrest if the individual would be unfit for the position because of the conduct

17 PERSONS SUBJECT TO FEDERAL PROHIBITIONS OR RESTRICTIONS Federal laws and regulations prohibit the employment of persons with records of certain crimes in particular positions, for example: Child care workers in federal agencies Bank employees Port workers Employers may obtain a waiver from these restrictions

18 STATE AND LOCAL RESTRICTIONS Commission s refusal to allow employers to establish business necessity based on compliance with state or local laws prohibiting the employment of persons with certain criminal convictions Employer must demonstrate that its policy is job-related and consistent with business necessity based on the Green factors

19 OTHER RELEVANT POINTS Persons who do not actually apply for employment may have a cause of action against an employer if the potential applicant is discouraged from applying As a best practice, the Guidance encourages employers not to ask applicants about their criminal records Guidance addresses disparate impact on African- Americans and Hispanics, but does not address disparate impact based on sex

20 OPERATING IN THE NEW LEGAL ENVIRONMENT Commission accepts criminal background checks as a common employment practice 92 percent of responding employers utilize criminal background checks Employers should review the Guidance and evaluate and revise their policies and practices in accordance with the Best Practices EEOC has taken the position that it can expand any individual charge into a systemic discrimination investigation

21 GUIDANCE DEFECTS EEOC s Authority to Issue OIRA (OMB) Review Congress Legal challenge (will courts defer?)

22 Will Courts Follow Guidance? Not 100% clear but even if courts don t significant potential issues with EEOC before judiciary becomes involved Courts sometimes bow to EEOC guidance Justice Scalia generally defers to EEOC If guidelines, rejected, pure DI business necessity analysis applies difficult standard to meet

23 FCRA Considerations Disclose in writing to applicant/employee Obtain signed authorization (can be electronic) Consumer reporting agency (CRA) conducts checks requested by employer CRA provides background report to the employer and, if requested provides copy to applicant/employee. Employer reviews background report and determines if any information will adversely impact employment decision. If no adverse impact results employer proceeds with other steps in the employment process

24 FCRA Considerations Pre Adverse Action or First Notice Notify applicant/employee and provide: copy of background report A Summary of Your Rights under the Fair Credit Reporting Act Applicant/employee contacts CRA if s/he disputes any information in background report. CRA re-investigates any disputed items of information and issues updated report. Final Adverse Action If final employment decision is denial then a notice of adverse action is sent to applicant/employee.

25 State Considerations Stricter limits than FCRA Ban the Box Other items

26 QUESTIONS? CONTACT INFORMATION GAREN DODGE CHRISTINE CUNNEEN Partner CEO Jackson Lewis LLP Hire Image LLC Direct: Toll free: