a legal update - az9194.vo.msecnd.netaz9194.vo.msecnd.net/pdfs/110902/3215.pdf · sj for the...

BACKGROUND CHECKS UNDER FIRE:

A LEGAL UPDATEASIS INTERNATIONAL 57TH ANNUAL SEMINAR AND EXHIBITS

Angela Bosworth, JDOPENonline LLCOPENonline LLC

Today’s Presenter

Angela Bosworth, JDExecutive Vice President, OPENonline

Angela is an attorney who specializes in hiring issues, privacy, FCRA and state regulatory issues surrounding the background screening and and state regulatory issues surrounding the background screening and hiring process.

Copyright OPENonline LLC 2011

Current Hiring Climate

� US Bureau of Labor Statistics: 15 million Americans unemployed

� Only 2.8 million available jobs

� 4-10 people applying for every job (not including � 4-10 people applying for every job (not including currently employed who are seeking new or better jobs)

� Recovery from Recession has been slow and these estimates are conservative


So Many Applicants

� Pressure on recruiters/employers to screen hundreds of applicants for one opening

� Employers have narrowed their sourcing methods

� Companies are afraid to use broad distribution services� Companies are afraid to use broad distribution services

� Some don’t even post jobs and go only to one networking site—for example, a hiring manager’s alumni association, LinkedIn


Consequences of Narrowing the Pool of Potential Applicants

� Can lead to an unbalanced field that lacks racial diversity

� Can lead to homogenous pools

� Unintended impact: � Unintended impact:

June 2010 Unemployment Stats:

�Blacks: 14.7%

�Hispanics: 12.2%

�Whites: 8.7%


Rejected Applicants Fight Back

� A disappointed job seeker has 180 to 300 days to file a charge with the Equal Employment Opportunity Commission (EEOC)

� EEOC takes four months to one year to review it� EEOC takes four months to one year to review it

� EEOC and Plaintiff’s attorneys are filing record number of cases


The Legal Claims

Potential Legal Claims Include:

� Discriminatory hiring practices under Title VII

� “Failure to hire”

� Class actions claiming disparate impact � Class actions claiming disparate impact


Title VII of the Civil Rights Act of 1964

Prohibits discrimination in employment based on race, gender, national origin, and other protected classes

Two types of discrimination in employment:

1. Prohibits employers from making hiring decisions based 1. Prohibits employers from making hiring decisions based on race

2. Prohibits employers from using selection procedures that have “Disparate Impact”


Disparate Impact

Definition:When an employer’s decision making or selection process is neutral on it’s face, but has an adverse impact on a protected class under Title VIIprotected class under Title VII


Proving Disparate Impact

� Plaintiff must prove the challenged practice or selection device has a substantial adverse impact on a protected group� Typically, this proof is offered through statistical comparisons, which

may be challenged by the defendant

� Employer’s defense is to show that the practice is job-related for the position in question and consistent with business necessitythe position in question and consistent with business necessity

� Plaintiff may still prevail by showing the employer has refused to adopt an alternative employment practice which would satisfy the employer's legitimate interests without having a disparate impact on a protected class (less discriminatory)


The Argument

� Statistical evidence shows that African Americans make up a disproportionate number of the total arrests in the US (28.3%) when compared to their share of the total population (12.9%)

� Thus policies that limit employment based on arrests or other criminal history may disproportionately impact African Americans and Latinos because they are over-represented in the criminal justice system


EEOC Weighs In

� The Equal Employment Opportunity Commission is charged with enforcing Title VII claims of discrimination in the workplace

� EEOC has stated: “an absolute bar to employment” � EEOC has stated: “an absolute bar to employment” (“blanket policies”) based on the fact that an individual has had a criminal conviction is “unlawful” under Title VII


EEOC E-RACE

� Eradicating Racism and Colorism from Employment eeoc.gov/eeoc/initiatives/e-race/index.cfm

� Focused on eliminating barriers to employment

� Targets use of credit, systemic discrimination, as well as � Targets use of credit, systemic discrimination, as well as criminal history


EEOC Guidance on Use of Criminal Records

To prevent discriminatory practices when using criminal

records, employers must take into account:

� Nature and gravity of the offense or offenses

� Amount of time that has passed since the conviction � Amount of time that has passed since the conviction and/or completion of the sentence

� Nature of the job held or sought


Case Law: Criminal History

� El v. SEPTA (2007) :Plaintiff was denied job due to a “bright line” policy. 40 yr. old gang related homicide conviction. Court upheld SJ for the employer saying plaintiff did not produce sufficient evidence. Mixed result for employers.

� EEOC v. Freeman: pending class action brought by EEOC involving criminal and creditcriminal and credit

� Arroyo v. Accenture: pending case alleging criminal history is being used without showing business necessity

� Hudson v. First Transit (settled 2011): school bus transportation giant settled class action claim alleging a blanket policy

� EEOC v. Kaplan: pending case alleging use of credit caused disparate impact discrimination


Class Action Suits are Being Solicited

Employers Caught in the Middle

� Need to maintain safe workplace

� Threat of negligent hiring, negligent retention lawsuits

� Public interest served in conducting background checks (NASA v. Nelson, US Supreme Ct. January 12, 2011)(NASA v. Nelson, US Supreme Ct. January 12, 2011)

vs.� Avoiding discrimination

� Maintaining appropriate hiring pool

� Restrictions on how to conduct appropriate screening


Blanket Policies


What is “Ban the Box”?

� A movement to prohibit employers from asking about criminal history on the application

� Most laws prohibit asking about criminal history at the application stageapplication stage

� Traditionally done by eliminating the checkbox on the application “Have you been convicted of a criminal offense?”


Argument for “Ban the Box”

Proponents Claim:

� Qualified workers are being eliminated prematurely from consideration

� Ex-offenders are being eliminated and cannot find work� Ex-offenders are being eliminated and cannot find work

� Effect is a “culling” of the applicant pool

� Could lead to disparate impact discrimination due to the high percentage of minority arrests


Employers View: “Ban the Box”

� Employers want the right to screen who they want, when they want

� Laws are being adopted on both state and local level, increasing the difficulty in compliance

� How to handle doing business in multiple jurisdictions?� How to handle doing business in multiple jurisdictions?

� Challenges in adopting policies that will work for all workers, no matter what state/city

� Need to regularly update forms and educate hiring managers and HR

� How to handle contractors, 1099 employees?


States that “Ban the Box”

� California

� Connecticut

� Hawaii

� Massachusetts � Massachusetts

� Minnesota

� New Mexico

� New York

� Pennsylvania

� Wisconsin


Ban the Box: California (2010)

� Ban the Box applies to State Employment only

� California State Personnel Board

� Standard application does not ask for information on conviction history

� If the applicant is applying for a position “to which a criminal record is pertinent,” they are required to complete a “Criminal Record Supplement Questionnaire”

� Not all positions or applications require the questionnaire


Ban the Box: Connecticut (2010)

� Ban the Box applies to State Employment or Licensure

� State employers and licensing agencies must wait until a conditional offer has been made before obtaining a criminal background check

� Requires the state or licensing agency to consider nature of the crime and relationship to the job, rehabilitation information, and crime and relationship to the job, rehabilitation information, and the time elapsed since conviction or release before making a decision

� Requires the state or licensing board provide applicant with a written letter of rejection stating the evidence/reason

� Prohibits use of arrest that did not lead to conviction or convictions that have been sealed/erased


Ban the Box: Hawaii (1998)

� Ban the Box applies to public and private employment

� Prohibits inquiry until after a conditional offer has been made

� Offer may be withdrawn if a conviction bears a “rational relationship” to the duties“rational relationship” to the duties

� Employers may only consider conviction records within the most recent 10 years

� Use of arrest or court record is defined as a discriminatory practice (HRS section 378-2)


Ban the Box: Massachusetts (2010)

� Ban the Box applies to employers, volunteer coordinators and professional licensing agencies

� Illegal to request criminal information on initial application formapplication form

� Exceptions if there is a state law prohibiting hiring persons with felonies or criminal history

� Employer required to provide a copy of the criminal record if used for adverse decision


Ban the Box: Minnesota (2009)

� Ban the Box applies to state and local government employees

� Prohibits public employers or licensing agency from inquiring into criminal history until after applicant has been selected for an interview

Prohibits disqualification for job or license unless conviction is � Prohibits disqualification for job or license unless conviction is “directly related”

� Set factors for “job relatedness”

� Applicant may not be disqualified if they can show evidence of rehabilitation, and fitness to perform the duties

� Arrests not resulting in convictions cannot be used


Ban the Box: New Mexico (2010)

� Ban the Box applies to State employees

� Prohibits inquiry on an initial job application

� Applicant’s criminal history may only be considered after “selected as a finalist”“selected as a finalist”

� Convictions may not serve as “automatic bar” to public employment or licensure

� Prohibits use of arrest if not followed by conviction and misdemeanor not involving moral turpitude


New York (1977)

� Anti-discrimination law applies to private and public employment and licensing

� Prohibits unfair discrimination against persons with previous convictions

� Prohibits disqualification of candidate solely or in part on � Prohibits disqualification of candidate solely or in part on the criminal history or lack of “good moral character” unless there is a “direct relationship” between conviction and employment or license or would create an unreasonable risk to property, individuals or general public

� Law has list of factors to be considered


Pennsylvania (1979)

� Limits on use of criminal records applies to private sector

� Prohibition of use of criminal records that “do not relate to the applicant’s suitability for employment”

� Requires employers to provide written notification if a determination not to hire was based whole or in part on the determination not to hire was based whole or in part on the criminal info

� Allows state agencies to consider criminal history for licensure

� Prohibits consideration of non-conviction arrests


Wisconsin (1981)

� Anti-discrimination law applies to both public and private

� Prohibits employment discrimination in on the basis of arrest or conviction arrest or conviction

� Applicant may not be denied employment unless the conviction is “substantially related” to the job or licensed activity


Local Jurisdictions: “Ban the Box”

1. Alameda Co, CA

2. Austin, TX

3. Baltimore, MD

4. Berkeley, CA

5. Boston, MA

6. Bridgeport, CT

14. Minneapolis, MN

15. Multnomah Co, OR

16. New Haven, CT

17. Norwich, CT

18. Oakland, CA

19. Philadelphia, PA6. Bridgeport, CT

7. Cambridge, MA

8. Chicago, IL

9. Cumberland County, NC

10. Hartford, CT

11. Jacksonville, FL

12. Kalamazoo, MI

13. Memphis, TN

19. Philadelphia, PA

20. Providence, RI

21. San Francisco, CA

22. Seattle, WA

23. St. Paul, MN

24. Travis County, TX

25. Worcester, MA


To Do List

� Bring together stakeholders in your organization: HR, security, IT, legal

� Audit policies and procedures

� Consider incorporating EEOC Guidelines in policies

� Avoid “blanket” policies such as an outright ban on a past criminal record

Match hiring criteria with job descriptions to prove business necessity � Match hiring criteria with job descriptions to prove business necessity and job relatedness (and put these in writing!)

� How do you document business necessity?

� Review hiring policies for contract workers/temporary employees

� If you are using an outside staffing resource, audit their practices and review their advertisements


Thank You!

Angela [email protected]

@angelabosworthlinkedin.com/in/angelabosworth

If you would like a copy of today’s slides, please contact:[email protected]

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@BackgroundPros


a legal update - az9194.vo.msecnd.netaz9194.vo.msecnd.net/pdfs/110902/3215.pdf · sj for the...

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