best practices in background screening and eeoc guidelines
DESCRIPTION
Attention HR professionals! Check out our presentation on best practices in background screening. TalentWise is your expert on pre-employment screening, as well as all hiring activities from offer letters to onboarding.TRANSCRIPT
Best Practices in Background
Screening and EEOC Guidelines
The following presentation should not be construed as legal advice or legal opinion. The contents are intended for general information purposes only. You are urged to consult an attorney concerning your own situation and any legal questions.
Thanks for watching!
Disclaimer
Property of TalentWise
History of EEOC and Background Screening
Conclusion: The EEOC is serious about non-discriminatory practices and is committed to enforcing! Employers need to be vigilant for potentially risky practices.
1964v
1964: Title VII passed, the Civil Rights Act
1987: Policy Statement on the Issue of Conviction Records
2007: E-RACE initiative launched (Eradicating Racism and Colorism in Employment)
2012: EEOC issues its Criminal History Guidance)
2014: Today: Large volume of litigation and pending charges
20141987 2007 2012
Disparate Treatment Disparate Impact
Property of TalentWise
Kinds of Discrimination
We don’t hire anyone who may ever need a maternity leave or who hasn’t been a
member of the Boy Scouts of America.
We don’t hire women.
Both kinds are illegal. Disparate impact directly relates to background screening.
The law is complex, so the EEOC issued guidance to help employers navigate it. Four main points to remember:
No Bright Line Rules! (“We don’t hire felons!”) There is a 3-Factor test for using criminal history to screen for
employment Employers must use an Individualized Assessment The “Do You Have a Criminal History?” question should not be on the
application and should be limited in scope.
Let’s look at these more closely…
Property of TalentWise
Overview of the 2012 Guidance
• A one size fits all policy is usually unfair.• Saying “We don’t hire felons!” or “No convicted criminals need
apply!” is inflexible. • Studies have conclusively proven that minorities are
disproportionally arrested and convicted of crimes, so rules like this have a Disparate Impact on them.
Property of TalentWise
No Bright Line Rules!
Employers have to look at 3 things when considering employment decisions and criminal history:
Nature and gravity of the offense Time since the conviction and/or completion of sentence Nature of the job held or sought
Property of TalentWise
Three Factor Test for Criminal History
I had a DUI conviction
but this job is non-driving.
This is probably the most important part of the EEOC Guidance!
Property of TalentWise
Individualized Assessment
Case-by-case analysis required when looking at criminal
history!
Since minorities have been proven to be arrested more often than non-minorities, using arrest records alone in employment decisions is per se disparate impact.However, employers may base a hiring decision on the underlying conduct leading to the arrest if the conduct makes the individual unfit for the position.
Warning: Use of arrest records can be risky because they are not proof of criminal conduct.
Property of TalentWise
Arrest Records
Many states and municipalities have passed “Ban the Box” legislation, forbidding employers from asking about arrests or convictions on job applications.
Employers: Only ask about convictions that are allowed to be considered and
relevant to the job Ask later in the process, such as at interview or after conditional
offer
Property of TalentWise
Ban the Box!
Property of TalentWise
Ban the Box legislation varies
State to state and city by city…different restrictions for private vs. public employers, different restrictions about what can be asked and when.
One of the broadest!• Applies to positions performed 50% or more in city• Bars practices that categorically exclude based on convictions• Solicit criminal history information after initial screening of
application/resume • Can only take action for “legitimate business reason”• Must keep position open 2 days to give applicant chance to respond
*Exclusions• Law enforcement and related positions• Positions with access to children or vulnerable adults
Property of TalentWise
Example: Seattle’s Ban the Box law
Organizations can’t outsource responsibility to staffing companies Make sure staffing companies are following the EEOC guidance as
well and that individualized assessment is happening If you are a staffing company, the “We’re just following orders!”
defense doesn’t work.
Property of TalentWise
Staffing Companies
But the client said to only send them white males under 40 years old!
Revisit your policies to conform to EEOC Guidance! Take the criminal history question off the initial application Allow applicants to provide facts, circumstances and evidence of
rehabilitation about any criminal history Only ask for the very minimum you need (i.e. don’t ask for
misdemeanors if you don’t care about them) Keep detailed records (individual worksheets) of investigations to
prove individual assessments Have a top notch background screener (TalentWise!) who is up to
date on all legislation and who can get additional information like education and employment history
Property of TalentWise
Best Practices in a Nutshell
TalentWise is a technology company that's transforming the way HR manages job offers, screens, and onboards new hires. TalentWise has built a single, online platform that automates the hiring process end-to-end with compliance built-in, resulting in a highly efficient and positive experience for HR, hiring managers, candidates and new hires.
Additional Resources for Background Screening:• Watch Best Practices in Background Screening Recorded Webinar
with attorney Pam Devata - View Webinar >> Read Negligent Hiring Claims Whitepaper – Download >> Learn about TalentWise Hire Screening Solutions - View Page >>
For more information, call us at TalentWise: 1-877-893-6128 Or email us at [email protected]
Property of TalentWise
About TalentWise
