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JACK

SON

LE

WISTHE USE OF ARREST AND CONVICTION

RECORDS IN MAKING EMPLOYMENT DECISIONS

PRESENTED BY: CHRISTOPHER E. HOYME

JACKSON LEWIS P.C.MARCH 26, 2014

Why conduct background checks?

1. To safeguard the public.2. To avoid litigation and liability.3. To minimize risks to other

employees in the workplace.4. To make sure you are hiring the

best person for the job.

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Minimize Risks• Workplace Violence• The Workplace Violation Research Institute

estimates that business owners nationwide lose $36 billion annually from the effects of workplace violence.

• Workplace Violence could lead to legal liabilities.

• OSHA states employers have a legal obligation to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”

• Hostile Work Environment claims can be made due to severe or ongoing workplace violence issues.

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Hire the best person for the job

• 49% of hiring managers surveyed by careerbuilder.com have caught candidates lying on their resumes

• Most common resume lies:•Dates of employment;•Academic degrees;•Graduation dates;•Performance numbers;•Salary;•Job titles;•Technical abilities;•Language fluency;•Grade point averages. 4

Social Networking Sites• MySpace• 1 billion page views per day• 100 million registered users• Facebook• 54 billion page views per month• 47 million registered users• 85% of students at participating universities have a

profile registered on Facebook, and 60% of those students log in to their profiles daily.

• Over 77% of employers uncover information about candidates online, and 35% have eliminated candidates based on information they have uncovered.

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Potential Pitfalls• Discrimination• Background check may reveal

information about a protected class. Race, sex, religion, ethnicity, age, etc.

• Employee may allege that background check has a discriminatory “disparate impact” on a protected class.Discrimination may exist when a protected class is implicated.

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Potential Pitfalls• Americans with Disabilities Act• Background checks may uncover

information about a disability. Past Drug or Alcohol Use Mental Health or Psychiatric conditions Other medical conditions

• Cannot base hiring decision on the fact that an individual has a disability.

• Cannot ask the individual about the disability. Can ask whether or not the person can perform the essential functions of the position with or without a reasonable accommodation. 7

Potential Pitfalls• Fair Credit Reporting Act (FCRA)• Applies to credit reports and background checks

used for employment purposes.• Requires the employer to get the individual’s

written consent. Requires clear and accurate notification.

• Applicants must also be given notice if a credit report will be used in making an unfavorable hiring decision. Applicant must also get a copy of their report and a statement of their rights.

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Retail Industry• % of Companies Who Conduct

Background Checks• What Department is Responsible

for Managing Background Checks?

• On What Type of Jobs Are Background Checks Conducted?

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EEOC SystemicDiscrimination

• “A practice or policy that has a broad discriminatory impact on an industry, profession, company or geographic area”

• Major areas of focus for the EEOC ADA Hiring/Adverse Impact Recent Cases Enforcement

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Background Checks: Watch Out for This Hot-Button Issue

• EEOC focus on employer use of flexible criteria to disqualify job applicants based on: Criminal History Credit History Educational Background Unemployment

• EEOC launching “systemic investigations” targeting hiring policies and practices with blanket exclusions, citing adverse impact on members of protected classes

• Significant rise in EEOC and private class action litigation

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EEOC Guidance on the Use of Arrest and Conviction Records• Stepped-up EEOC and private class action

litigation challenging blanket “no criminal history” policies Recent EEOC large settlements with

employers New EEOC guidance

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EEOC Guidance on the Use of Arrest and Conviction Records

• The Guidance lists possible topics of consideration in an individualized assessment, all of which generally require a dialogue The facts and circumstances surrounding

the offense The number of offenses for which the

individual was convicted Age at 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, without incidents of criminal conduct

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EEOC Guidance on the Use of Arrest and Conviction Records

The length and consistency of employment history before and after the offense

Rehabilitation Employment or character references and

other information regarding the individual’s fitness for the particular position

Whether the individual is bonded If the individual does not respond to the

employer’s inquiries, the employer may make its decision without the information 14

RECENT CASE LAW INTERPRETING EEOC

GUIDANCE• Adams• Welch• Freeman

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. . . Follow the 3 Golden Rules:

• Conduct the same investigation on every applicant for the same or similar positions

• Tailor background checks to legitimate business interests

• In enforcement of policies and practices

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Uniformity

Legitimacy

Consistency

Presented by:Christopher E. Hoyme

hoymec@jacksonlewis.com

10050 Regency Circle, Suite 400Omaha, Nebraska 68114

(402) 391-1991www.jacksonlewis.com

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