©2017 jackson lewis p.c. 1 - cbia tad nor nelson had subsequent contact with the criminal ......

Hiring Headaches: Changes to Candidate Screening & Negotiations

Allison P. Dearington, Esq.

Jackson Lewis P.C. | Hartford

[email protected]| 860-331-2585


AGENDA

• Ban the Box Initiatives

• EEOC Enforcement Guidance on Evaluating Candidates by Their Criminal Records or Credit History

• Fair Credit Reporting Act Requirements

• Pay Equity


An Act Concerning Fair Chance Employment


• Connecticut prohibits employers from asking aboutprior convictions or arrests in the initial employmentapplication.

• Candidates can be asked about criminal recordsduring the interview process or in a secondaryemployment application.

EXCEPTIONS

• The Act provides exceptions for employers who are required to makeinquiries about criminal records by law or if a security or fidelity bond isrequired for the position.

• If an exception applies, the application must include a clear andconspicuous notice that:

➢ the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, therecords of which have been erased pursuant to section 46b-146, 54-76o or 54-142a;

➢ criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are recordspertaining to a finding of delinquency or that a child was a member of a family with service needs, anadjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminalcharge for which the person has been found not guilty or a conviction for which the person receivedan absolute pardon; and

➢ any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes withrespect to the proceedings so erased and may so swear under oath.



EXISTING LAWS

Nothing in CT’s Ban the Box legislation changespreviously existing laws prohibiting employersfrom rejecting an applicant or terminating an

employee for➢ convictions that have been erased; or➢ convictions for which the applicant or employee has

received a provisional pardon or certificate ofrehabilitation pursuant to Conn. Gen. Stat.§§ 54-130a, 54-108f

Steps to Take To Ensure Compliance

➢ Revise employment application materials to remove all inquiriesregarding an applicant’s prior arrests, criminal charges, or convictions.

➢ Make sure key employees in the hiring process are educated about thenew provision.

➢ Check local city ordinances. For instance, certain municipalities, such asHartford and New Haven, Connecticut, prohibit private employers whoare vendors to the cities from conducting criminal background checksprior to making conditional offers of employment, among otherlimitations.

➢ For multi-state employers, look for similar provisions in otherjurisdictions. An increasing number of states and local jurisdictions haveimposed restrictions on the timing of criminal background checks,whether for public agencies, city vendors, or all employers. Understandhow ban the box laws of other jurisdictions may affect the hiring process,including on-line applications and advertisements.



Use of Background Checks: EEOC Enforcement Guidance

The Bottom Line: background checks must beconducted in a non-discriminatory fashion.

The EEOC likely will scrutinize backgroundcheck procedures for disparate impact ortreatment based on protected class status,in particular, based on race and nationalorigin.

Disparate Treatment

A covered employer is liable for violating Title VIIwhen the plaintiff demonstrates that it treated himdifferently because of his race, national origin, oranother protected basis.

For example, there is Title VII disparate treatmentliability where the evidence shows that a coveredemployer rejected an African American applicantbased on his criminal record but hired a similarlysituated White applicant with a comparable criminalrecord.


Disparate Treatment Includes Stereotyped Thinking

An employer's decision to reject a jobapplicant based on racial or ethnicstereotypes about criminality - rather thanqualifications and suitability for the position- is unlawful disparate treatment thatviolates Title VII.


Stereotyped Thinking Example


Tad, who is White, and Nelson, who is Latino, are both recent high school graduates with grade point averages above 4.0 and college plans. Nelson successfully worked full-time for a landscaping company during the summers, and Tad only held occasional lawn-mowing and camp-counselor jobs.

In an interview for a research job, Tad discloses that he pled guilty to a felony at age 16 for accessing his school's computer system over the course of several months without authorization and changing his classmates’ grades. In an interview, Nelson emphasizes his successful prior work experience, from which he has good references, but also discloses that, at age 16, he pled guilty to breaking and entering into his high school as part of a class prank that caused little damage to school property. Neither Tad nor Nelson had subsequent contact with the criminal justice system.

The hiring manager invites Tad for a second interview, despite his record of criminal conduct. However, the same hiring manager sends Nelson a rejection notice, saying to a colleague that Nelson is only qualified to do manual labor and, moreover, that he has a criminal record. In light of the evidence showing that Nelson's and Tad's educational backgrounds are similar, that Nelson's work experience is more extensive, and that Tad's criminal conduct is more indicative of untrustworthiness, the EEOC would find reasonable cause to believe that discrimination occurred.

Disparate Impact


A covered employer is liable for violating Title VII when theplaintiff demonstrates that the employer’s neutral policy orpractice has the effect of disproportionately screening out aTitle VII-protected group and the employer fails todemonstrate that the policy or practice is job related for theposition in question and consistent with business necessity.

With respect to criminal records, there is Title VII disparateimpact liability where the evidence shows that a coveredemployer's criminal record screening policy or practicedisproportionately screens out a Title VII-protected groupand the employer does not demonstrate that the policy orpractice is job related for the positions in question andconsistent with business necessity.

Disparate Impact – Job Related & Consistent With Business Necessity


1. Arrests• Not proof of criminal conduct.

• Arrest records may not indicate the final disposition of the arrest. DOJ says that many arrest records in the FBI’s database and state criminal repositories are not associated with dispositions.

• An exclusion based on an arrest, in itself, is not job related and consistent with business necessity.

• An employer may, however, make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.➢ Example: Employee is suspended following an arrest for an alleged

assault in the workplace. The employer conducts and assesses the witnesses as credible but not the employee.

Disparate Impact – Job Related & Consistent With Business Necessity


2. Convictions

• Employer must develop a targeted screen considering at least:➢ the nature of the crime➢ the time elapsed➢ the nature of the job

• And then provides an opportunity for an individualized assessment, which should consider:➢ Facts surrounding the offense or conduct➢ The number of offenses for which the individual was convicted➢ Older age at the time of conviction➢ Evidence that individual performed same type of work post conviction➢ Length and consistency of employment history➢ Rehabilitation efforts➢ Employment or character references➢ Whether the individual is bonded under a federal, state or local

bonding program

Disparate Impact – Example

Leo, an African American man, has worked successfully at PR Agency as anaccount executive for three years. After a change of ownership, the newowners adopt a policy under which it will not employ anyone with aconviction. The policy does not allow for any individualized assessmentbefore exclusion.

Twenty years earlier, as a teenager, Leo pled guilty to a misdemeanor assaultcharge. During the intervening twenty years, Leo graduated from college andworked successfully in advertising and public relations without furthercontact with the criminal justice system. At PR Agency, all of Leo's supervisorsassessed him as a talented, reliable, and trustworthy employee, and he hasnever posed a risk to people or property at work. However, once the newownership of PR Agency learns about Leo's conviction record through abackground check, it terminates his employment. It refuses to reconsider itsdecision despite Leo's positive employment history at PR Agency.

The EEOC will find a disparate impact in this scenario, and PR Agency’sblanket policy regarding convictions will not be considered job related andconsistent with business necessity.



FAIR CREDIT REPORTING ACT

• Governs the collection, assembly, and use of information about consumers by consumer reporting agencies, including:➢ Credit information (CT limits instances where an employee’s credit may be

checked)➢ Criminal background checks➢ Motor vehicle reports ➢ Other public record information

• Applies only to “consumer reports” from a consumer reporting agency➢ Excludes information obtained directly from the consumer➢ Excludes employer direct verification of prior jobs/education


Fair Credit Reporting Act – Compliance

• Certify that employer provided applicant/employee “clear andconspicuous” written disclosure – separate and apart fromemployment application

• Employee must consent in writing

• Pre-adverse action process followed➢ Pre-adverse action notification➢ Copy of report➢ Statement of rights➢ Meaningful opportunity for review (FTC suggests 5 business days)

• Adverse-action process followed➢ Provide notice of adverse action➢ Provide information on consumer reporting agency and consumer

rights


PAY EQUITYTrending: Legislation Prohibiting Salary History Inquiries

• Several states and cities as well as members of Congress are pushinglegislation that would ban salary history inquiries on employmentapplications to help close the pay gap. (Approximately 82 cents to thedollar or $10,470 in median earnings per year)

• Connecticut’s proposed legislation did not pass but may be raised again

• Concerns that women and minorities carry lower salaries for the durationof their careers because of unequal wages set at previous jobs.

• Courts disagree over whether salary historycan be the sole defense to an EPA claim.


Pay Equity Considerations - Practical Steps For Employers

• Check state laws and city ordinances

• Regardless of the status of proposed legislation, consider removing pay history inquiries from the application

• Ensure that compensation decisions (including starting pay, raises and bonuses) are supported by legitimate business reasons

• Document the reasons for any pay decision


QUESTIONS?

©2017 jackson lewis p.c. 1 - cbia tad nor nelson had subsequent contact with the criminal ......

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