employee screening rights: 3 must know rules to avoid the wrath of the eeoc

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Employee Screening Rights: 3 Must Know Rules to Avoid the Wrath of the EEOC

Kevin Connell, CEO & FounderAccuScreen.comAugust 25, 2010 2-3 PM est

Wednesday, September 8, 2010


Legal Disclaimer

I am NOT an attorney, nothing in this Webinar should be construed as a legal opinion.

This Webinar is not intended as and should not be interpreted as legal advice or a legal opinion. Do not act or rely upon the information in this communication without seeking the advice of an attorney.



Agenda



Agenda

8/11/2010 AP “Some job-screening tactics challenged as illegal.”



Agenda


SHRM 2010 Survey



Agenda


SHRM 2010 Survey Credit Reports



Agenda


SHRM 2010 Survey Credit Reports Criminal Records



Agenda


SHRM 2010 Survey Credit Reports Criminal Records EEOC & Recent Cases



Agenda


SHRM 2010 Survey Credit Reports Criminal Records EEOC & Recent Cases Solutions: 3 Must Know Rules



Review of AP Article




8/11 Article filled with Hyperbole




8/11 Article filled with Hyperbole Misleading #’s – SHRM Survey




8/11 Article filled with Hyperbole Misleading #’s – SHRM Survey Attempts to scare employers about

taking necessary steps to protect: 1.)their companies 2.) their employees 3.) their customers



The Truth in #’s

“Three things cannot be long hidden: the sun, the moon, and the truth.”



SHRM Survey: 2010



SHRM Survey: 2010

Survey Snapshot



SHRM Survey: 2010

Survey Snapshot

Why do employers conduct background checks, what type of job candidates do employers investigate, what information in a job candidate’s consumer report could have adverse effect on the decision to hire?



SHRM Survey: 2010

Survey Snapshot

Why do employers conduct background checks, what type of job candidates do employers investigate, what information in a job candidate’s consumer report could have adverse effect on the decision to hire?

In November 2009, SHRM conducted a comprehensive survey that looked at background checking on job candidates. The survey explored the primary reasons organizations conduct background checks, the categories of job candidates organizations conduct background checks on and other related topics.



SHRM Survey



SHRM Survey

The research was divided into the following sections:



SHRM Survey


Providing References


http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckProvidingReferences.aspx



SHRM Survey


Providing References Conducting Credit Background Checks




http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundChecking.aspx



SHRM Survey


Providing References Conducting Credit Background Checks Conducting Criminal Background Checks






http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx



SHRM Survey


Providing References Conducting Credit Background Checks Conducting Criminal Background Checks General Background Checks








http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckingGeneral.aspx



SHRM Survey


Providing References Conducting Credit Background Checks Conducting Criminal Background Checks General Background Checks Post-Hire Background Checks










http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckPosthire.aspx



SHRM Survey


Providing References Conducting Credit Background Checks Conducting Criminal Background Checks General Background Checks Post-Hire Background Checks Drug Testing












http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckDrugTesting.aspx

http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckDrugTesting.aspx


SHRM Survey: Credit



Does your organization, or an agency hired by your organization, conduct credit background checks for any job candidates by reviewing the candidates’ consumer reports?

13%

47%

40%

All job candidatesSelected job candidatesNo, my organization does not conduct this type of background check for any of its job candidates

9

Note: n = 343



SHRM Survey: Criminal



Does your organization, or an agency hired by your organization, conduct criminal background checks for any job candidates?

74%

19%

7%

All job candidatesSelected job candidatesNo, my organization does not conduct this type of background check for any of its job candidates

11

Note: n = 347. Not sure” responses were excluded from this analysis.



SHRM Survey-Credit

The survey was conducted with 433 Randomly selected HR Professionals

H.R. 3149 would amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.



HR 3149: House Bill

13

Note: n = 343

A BILLTo amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.This Act may be cited as the `Equal Employment for All Act'.



HR 3149

SEC. 2. USE OF CREDIT CHECKS PROHIBITED FOR EMPLOYMENT PURPOSES.

(a) Prohibition for Employment and Adverse Action- Section 604 of the Fair Credit Reporting Act (15 U.S.C. 1681b) is amended--

`(1) GENERAL PROHIBITION- Except as provided in paragraph (3), a person, including a prospective employer or current employer, may not use a consumer report or investigative consumer report, or cause a consumer report or investigative consumer report to be procured, with respect to any consumer where any information contained in the report bears on the consumer's creditworthiness, credit standing, or credit capacity--

`(3) EXCEPTIONS- Notwithstanding the prohibitions set forth in this subsection, and consistent with the other sections of this Act, an employer may use a consumer report with respect to a consumer in the following situations:

`(A) When the consumer applies for, or currently holds, employment that requires national security or FDIC clearance.

`(B) When the consumer applies for, or currently holds, employment with a State or local government agency which otherwise requires use of a consumer report.

`(C) When the consumer applies for, or currently holds, a supervisory, managerial, professional, or executive position at a financial institution.



El vs SEPTA



El vs SEPTA

Douglas El vs. SEPTA



El vs SEPTA

Douglas El vs. SEPTA Third Circuit Rules that Employer's Blanket Exclusion of Applicants

with Prior Conviction for Violent Crime is Consistent with Business Necessity.



El vs SEPTA

Douglas El vs. SEPTA Third Circuit Rules that Employer's Blanket Exclusion of Applicants

with Prior Conviction for Violent Crime is Consistent with Business Necessity.

Plaintiff, Douglas El, filed suit under Title VII of the Civil Rights Act of 1964 claiming that SEPTA unnecessarily disqualifies applicants because of prior criminal convictions - a policy he argues has a “disparate impact” on minorities. On March 19, 2007, the 3rd U.S. Circuit Court of Appeals in El v. SEPTA affirmed the District Court’s entry of summary judgment in favor of SEPTA. The court found that an employer’s blanket exclusion from job consideration of candidates with a prior conviction for a violent crime was consistent with business necessity.



Progress Against Goals



Progress Against Goals

Summary of key financial results– Revenue– Profit– Key spending areas– Headcount



Revenue and Profit



Revenue and Profit

Forecast vs actual



Revenue and Profit

Forecast vs actual Gross margin



Revenue and Profit

Forecast vs actual Gross margin Important trends



Revenue and Profit

Forecast vs actual Gross margin Important trends Compare company to rest of market



Revenue and Profit

Forecast vs actual Gross margin Important trends Compare company to rest of market Use multiple slides to break out

meaningful detail



EEOC



E-Race



E-Race

E-RACE= Eradicating Racism & Colorism from Employment



E-Race


EEOC through its eRACE initiative was reviewing its options for increasing legal enforcement of the provisions of Title VII regarding an employers’ use of applicants’ criminal and credit records.



E-Race



The EEOC’s concern was the disparate impact of negative credit and criminal background checks against members of the class in question without an employer having sufficient valid business necessity or there being any



E-Race



The EEOC’s concern was the disparate impact of negative credit and criminal background checks against members of the class in question without an employer having sufficient valid business necessity or there being any

sufficient relationship of the adverse information to the job requirements to justify denying employment, especially if those records are more than a few years “old”.



EEOC Files Lawsuit vs Freeman Companies



EEOC vs Freeman (9/09)

EEOC v. Freeman d/b/a TFC Holdings Co., Case No. 09-CV-2573 (D. Md.) (complaint filed on September 30, 2009): Nationwide pattern and practice lawsuit alleging that a Dallas-based convention and corporate events planning company unlawfully discriminates against Black, Hispanic, and male job applicants on a nationwide basis by using credit histories and certain types of criminal arrests or convictions as selection criteria. The EEOC alleges that the company's use of credit histories and criminal backgrounds as selection criteria has a "significant disparate impact in Black applicants and that [the company's] use of criminal history information has an adverse impact onHispanic and male applicants."



EEOC vs Peoplemark (9/08)

EEOC v. Peoplemark, Case No. 08-CV-0907 (W.D. Mich.) (complaint filed Sept. 29, 2008): Nationwide lawsuit under Title VII on behalf of plaintiff and similarly situated African American applicants for employment at Peoplemark. The complaint alleges that the company maintains a policy which denies hiring or employment to any person with a criminal record and that such policy has a disparate impact on African American applicants.



EEOC: Carol Miaskoff

Disparate Impact: Neutral Employment Policy or Procedure

disproportionately screens out people on a prohibited basis AND

The employment policy or procedure is NOT job-related and consistent with business necessity for the position in question.



The “BIG THING” with D.I.

Two Points to Disparate Impact: 1.) Even if it disproportionately

impacts a certain group 2.) It would be legal if it is validated

for the job in question and is consistent with business necessity



EEOC & Criminal Record Checks “It is okay to do a criminal background

check, there is no prohibition, categorically, it is neutral.”

“The selection criteria has to really relate to the job in question.”

“If you have a policy that rejects all applicants with a Felony conviction; the EEOC might say, OK, well show me the validity stidy, show me the proof.”



EEOC & Criminal Record Checks “Felonies ranging from the smallest

drug offense to the most horrendous crime.”

“There are obvious examples of crimes that disqualify e.g. violent history & working with children, crimes of graft (bribery) or corruption and working in a bank.”



EEOC & Criminal Record Checks EEOC refers to sister agency,

Transportation, Port Workers “The only crimes that categorically

exclude you from ever working at a U.S. Port are Treason & Espionage.”

EEOC likes this agency model because they have a “graduated tier of crimes.”



EEOC -Race-Based ChargesFY 1997 - FY 2009

The following chart represents the total number of charge receipts filed and resolved under Title VII alleging race-based discrimination.

The data are compiled by the Office of Research, Information and Planning from data compiled from EEOC's Charge Data System and, from FY 2004 forward, EEOC's Integrated Mission System.



EEOC - Title VII of the Civil Rights Act of 1964 Charges FY 1997 - FY 2009(includes concurrent charges with ADEA, ADA and EPA)

•The following chart represents the total number of charge receipts filed and resolved under Title VII.

•Receipts include all charges filed under Title VII as well as those filed concurrently under the ADA, ADEA, and/or EPA. Therefore, the sum of receipts for all statutes will exceed total charges received.

•The data are compiled by the Office of Research, Information and Planning from data reported via the quarterly reconciled Data Summary Reports and compiled from EEOC's Charge Data System and, from FY 2004 forward, EEOC's Integrated Mission System.



3 Must Know Rules:

1.) Don’t have an absolute exclusion of hiring anyone who has a criminal conviction. Make sure selection procedure is job-related and consistent with business necessity.

2.) Make sure that you look at the conviction as it relates to the job. Is it necessary for the safe & efficient performance of the job?

3.) How long ago was the crime? How much time has elapsed? 5 years, 10 years, 20 years - Is it in your hiring guidelines and policy?



Summary



Summary

Summarize key successes/challenges



Summary

Summarize key successes/challenges Reiterate key goals



Summary

Summarize key successes/challenges Reiterate key goals Thanks



AccuScreen.com Annual Top 7 Resume Lies Report

1.) Job Title (Rank) 2.) Education (Bogus Degrees – Diploma Mills)

3.) Criminal Records 4.) Salary 5.) Dates of Employment 6.) Professional Licenses 7.) Ghost “Shell” Companies



Next Webinar

September 9, 2010 @ 11:00 AM est Outrageous Resume Lies & Every

Fraudulent Websites that Enables Fraud to Occur

Extended Q & A



Contact Information

AccuScreen.com

Kevin Connell

[email protected]

813-837-1920

Carol Miaskoff, EEOC, Assistant Legal Counsel

email: [email protected]

202-663-4645


mailto:[email protected]




employee screening rights: 3 must know rules to avoid the wrath of the eeoc

Documents

integrated

screening

agenda 8112010

increasing

charge data

criminal background

civil rights

septa douglas