background screening: recent litigation trends

The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.

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The Basic Truths About Background Screening:Recent Litigation Trends

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Your Host: Rick ColtmanDirector of Strategic Marketing and Alliances, Trak-1 Technology, Inc.

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Your Presenter: Matt GrahamVP of Operations, Trak-1

Technology, Inc.

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Quick RefresherFCRA

The Fair Credit Reporting Act Applies ToAll Background Screening By A Consumer Reporting Agency (CRA)

Not Just CreditNot Just EmployeesNot Just Criminal


Goals of the FCRA• Protect the Privacy of Consumer

Report Information • Guarantee That the Information

Supplied By Consumer Reporting Agencies is as Accurate s Possible

• Inaccurate or Incomplete Consumer Reports Could Cause Applicants to Be Denied Jobs or Cause Employees to Be Denied Promotions Unjustly


EEOC Revises Enforcement Guidance

• April 25, 2012 (Last Updated Over 20 Years Ago)

• Interprets Title VII Of Civil Rights Act, ADA, ADEA, GINA, EPA

• Starts From The Premise That Using Criminal Records In Employment Decisions, Absent Additional Considerations, Has a Disparate Impact


Factors To Consider

The Nature and Gravity of the

Offense(s)

The Time That Has Passed Since

Conviction/Sentence

The Nature Of The Position Held/Sought


Individualized Assessment• 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

Individualized Assessment


• Employment or Character References and any Other Information Regarding Fitness For the Particular Position

• Whether The Individual is Bonded Under a Federal, State, or Local Bonding Program.

Individualized Assessment


EEOC Best Practices

• Eliminate Policies or Practices That Exclude People From Employment Based on Any Criminal Record

• Develop a Narrowly Tailored Written Policy and Procedures For Screening For Criminal Records

• Train Managers, Hiring Officials, and Decision-makers About Title VII and Its Prohibition on Employment Discrimination


• Identify Essential Job Requirements and The Actual Circumstances Under Which The Jobs are Performed

• Determine The Specific Offenses That May Demonstrate Unfitness For Performing Such Jobs

EEOC Best Practices


• Determine The Duration of Exclusions For Criminal Conduct Based on All Available Evidence

• Record The Justification For The Policy and Procedures

• Keep a Record Of Consultations and Research Considered in Crafting The Policy and Procedures

EEOC Best Practices


Summary Of EEOC Guidance

1. Change Your Application2. Review Your Authorization/Disclosure

3. Customize Your Screening Based on The Functions of The Positions

4. Support Your Matrix With Science/Statistics5. Adjust Decision Criteria


Case Examples

Freeman BMW

Dollar General


EEOC Before The Guidance

FREEMAN CASE

Black Eye For EEOC

Multiple Procedural and Expert Witness

Issues


• Expert Analysis “Distorted”, “Both Over-inclusive And Under-inclusive”, and, “An Egregious Example Of Scientific Dishonesty”

• Failed To Show Disparate Impact Stemming From A Specific Employment Practice

FREEMAN CASE


• Offered The Job Before Conducting The Background Screening

• Only Considered Convictions Or Releases From Prison Occurring Within The Last Seven Years

• Evaluated Offenses In Terms Of Job-relatedness

• Rated Crimes Based On Severity

FREEMAN CASE


• Reviewed Warrants and Gave Applicants a Reasonable Amount of Time To Resolve Them.

• Upper HR Officials Reviewed Recommendations of “Not To Hire”

• Restricted Use of Credit Checks To Those Handling Consumer Credit Cards, Money and Customer’s Property of Value

FREEMAN CASE


• Avoid Exposure To Negligent Hire/Retention Lawsuits

• Increase Security of Its Assets And Employees• Reduce Liability From Inconsistent Hiring or

Screening Practices• Proactively Reduce The Risk of Employee-

related Loss• Mitigate The Likelihood of Adverse Incidents

Occurring on Their Property That Could Jeopardize Employee or Consumer Confidence

FREEMAN CASE


Application Of EEOC Guidance

Employees With Long-standing History of Success With The Company Were Not Retained When a

Subsequent Background Check Turned Up a Criminal Past

BMW CASE


One Applicant Denied a Cashier Position Because of 6 Year Old Drug Conviction In Spite of Previous Position

With Another Discount Retailer as a Cashier-stocker For Four Years

Another Applicant Advised Store Manager of an

Incorrect Background Check Report But Company Refused To Hire Anyway

DOLLAR GENERAL CASEApplication Of EEOC

Guidance


AGs Letter to EEOC (7/29/13)

• Nine Attorneys General Send Letter To EEOC– Drop Cases, Rescind Guidance

• Unlawful Expansion Of Title VII• State Law Interference• Burden On Business


EEOC Response To AGs (8/29/13)

• Updates Longstanding Policy• Does Not Urge Or Require Individualized

Assessment• Encourages Two-step Process

– Targeted Screening, Individualized Assessment

• Guidance Doesn’t Preempt, Title VII Does


Recent Class Action Cases

• State Farm (Case No. 5:14-cv-00151; E.D. Ky.) April 18, 2014

• US Foods, Inc. (Case No. 8:14-cv-00612; C.D. Cal.) April 18, 2014

• Walmart (Case No. 3:14-cv-00208; E.D. Va.) March 24, 2014

• Disney (Case No. BC 526351; Superior Court of California) November 1, 2013

• Whole Foods (Case No. 3:14-cv-00592; N.D. Cal.) February 7, 2014


Take Away Points1. Understand EEOC’s Guidance On Using Criminal

Records2. Review Your Application3. Review Disclosure And Authorization Forms4. Confirm You Are Providing Adverse Action Notices5. Remember FCRA Allows For $100 - $1000 Per

Violation


Name Matching

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Contact Matt Graham directly or talk with Trak-1’s FCRA certified screening professionals and begin –

Ruling In The Right People!

Coming Up Next….

background screening: recent litigation trends

Recruiting & HR

background screening

basic truths

contact trak

rights employment

rights factors

rights goals

rights evidence

civil rights act