presented by edward c. jepson, jr. vedder price p.c. 222 north lasalle street chicago, il 60601

© 2012 Vedder Price P.C.

PESTSURE2012 AUTUMN LOSS PREVENTION MEETING

THE EEOC GUIDELINES ON ARRESTSAND CONVICTIONS AND OTHER RECENT

EEOC DEVELOPMENTS

Presented by

Edward C. Jepson, Jr.Vedder Price P.C.

222 North LaSalle StreetChicago, IL 60601

(312) 609-7582


I. INTRODUCTION Growth in Prison Population Disparate Impact Increased Use/Availability of Background Checks New EEOC Guidance Part of ERACE initiative

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II. WHAT IS A GUIDANCE The guidance is not the law But EEOC will follow and courts likely to give deference

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III. LAWS RESTRICTING USE OF ARREST AND CONVICTION INFORMATION

Title VII does not prohibit asking/using, per se Many state laws, whether equal opportunity or others have set guidelines,

prohibit or restrict the use of arrest and conviction information The Fair Credit Reporting Act regulates the receipt and use of such

information when it is generated by a third party consumer reporting agency.

Requires consent of employee or prospective employee Requires disclosures of the legal obligations under the FCRA If the decision is based on information in consumer report:

Notice to employee or candidate Copy of report Opportunity to contest

A Word about Credit Reports

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IV. EEOC GUIDANCE The 1987 policy statement and 1990 guidance provided that an employer

should not have a blanket policy prohibiting the hiring of those convicted of crimes, but instead should consider what has been known as the Green factors:

Time since conviction Nature of job Nature of and gravity of offense

EEOC officials state no real changes or minor changes -- understatement for employers

Big changes in disparate impact In order to prove disparate impact

Prove there is a policy or practice Prove disparate impact when applied to minorities EEOC cites national statistics

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IV. EEOC GUIDANCE Employer proof of job-related and business necessity

No longer a simple consideration of the three Green factors One option to validate under the uniform guideline/guidance says difficult and may prove costly Another option, if federal law requires excluding applicants based on certain criminal records, it

specifically states that such state restrictions are pre-empted. Targeted screening

Targeted screening policy narrowly drafted with respect to job in question and offenses that are related The three Green factors

Then an individualized assessment to determine if exception, which involves consideration of eight factors:

The facts or circumstances surrounding the offensive conduct The number of offenses for which individual is convicted The age at the time of conviction or released from prison Evidence that the individual performed the same type of work post conviction with no known

incidents

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IV. EEOC GUIDANCE Then an individualized assessment to determine if exception, which involves

consideration of eight factors: (Cont’d) The length and consistency of employment history before and after the conduct Rehabilitation efforts Employment or character references Whether the individual has been bonded under a federal, state or local program

Increased costs to employer Validation/expensive Individualized assessment potentially expensive to conduct and may lead to disparate

treatment claims Arrests v. Convictions

Arrests usually not used except underlying conduct, maybe Convictions usually good enough, but EEOC points that there may be errors in the process

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V. PRACTICAL CONSIDERATIONS All employers should review their policies and practices in light of

the guidance and evaluate and revise as necessary No blanket denial of employment should continue to be the rule Large employers with high turnover are especially at risk Big numbers lead to big damages

Employment applications – to ask or not? Some states prohibit the question EEOC says to only ask later in the process If decide to ask as to convictions, make certain to state that this information

will not necessarily deny employment, but would be taken on a case by case basis

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V. PRACTICAL CONSIDERATIONS No automatic disqualifications, except where required by federal

law Consider whether validation is possible Develop a narrowly tailored policy with targeted screening and individual

assessment, which includes review of the essential job factors and work convictions may be related

Training for Human Resources managers and employees

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EEOC Litigation Regarding Leaves of Absence

Understanding your risk Best practices for your workplace

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High-Profile EEOC ADA Litigation EEOC’s focus has been on employer policies or practices of:

“rigid” terminations at the end of LOA (even very extended leaves) requiring “100% healed” before RTW “no fault” attendance policies

EEOC will look behind the policy language at the practice can the employer demonstrate that it was exploring reasonable

accommodations in every case prior to termination? has the interactive process been documented? what reasonable accommodations were offered? Additional unpaid leave?

Light duty? Transfer to an open position? Part time?

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Challenges to DefendingEEOC Litigation Pattern or Practice Litigation

very expensive and burdensome to defend nationwide class and discovery no class certification mechanism

Big ticket settlements SuperValu: $3.2 M Sears: $6.2 M Verizon: $20 M (July 2011)

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Best Practices in Light ofIncreased EEOC Scrutiny Review and modify leave policies

Be mindful that leave might need to be extended even after job protection ends

Create a uniform plan for addressing return-to-work issues consider an “accommodations team” (for consistency, re: interactive

process) train managers and HR team regarding the reasonable accommodation

process reach out in writing to each employee who is approaching the end of a

specified leave of absence to begin the interactive process dialog

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Best Practices in Light ofIncreased EEOC Scrutiny Involve health care provider in dialog

provide a medical questionnaire and job description to HCP closely manage the process and seek clarification if responses are vague or

unclear stay in close communication with your employee—goal is to jointly find a

solution to facilitate return to work and performing essential job functions Documentation is key

include every request for accommodation, every offer of accommodation and every response from employee

maintain up-to-date job description for every job: accurately reflect essential functions Include physical demands of the position

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Retaliation Claims on the Rise Fastest growing type of EEOC charge Special Attention at EEOC

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Retaliation Protections Retaliation claims provide protection for employees who

exercise specific statutory rights (e.g., employment discrimination statutes), engage in conduct that as a matter of public policy should not result in their

termination or other adverse action, or report violations of law by their employer

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Retaliation: Proving a Claim Protected activity (depends on source of claim)

EEO - Participation/opposition Adverse Employment Act Causal connection

Timing Comments Inconsistent treatment

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Managing the Risk Before an employee engages in protected activity:

Implement and train management on consistent treatment of employees Have regular and candid performance reviews Train managers on how and when to document, including performance

reviews, coaching and corrective action

Employer policies Every employer should have and disseminate a written policy prohibiting

sexual, racial and other forms of discrimination and harassment and providing a flexible complaint mechanism for employees who feel they have been subject to discrimination, harassment or retaliation

Restrict disclosure of complaints of protected activity to a need-to-know basis

A manager who does not know of a protected complaint cannot retaliate for it

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Managing the Risk Employer policies

The policy should Provide for complaints to be submitted to designated HR officials, or other

management if the employee for any reason is not comfortable with submitting the complaint to the designated HR official(s)

Assure employees that they will not be retaliated against for presenting a good-faith claim

State that supervisors or others who do retaliate will face discipline, up to and including discharge

Require supervisors who observe possibly retaliatory conduct to report it Call for prompt and thorough investigation and an appropriate report back to the

complaining employee Provide for appropriate remedial action Restrict disclosure to a need-to-know basis

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Many employers have instituted policies or procedures providing employee complaint mechanisms for subjects in addition to discrimination and harassment, in some cases for any grievance at all

Any such broader policy should have the same features mentioned above In certain circumstances, for example, cases of alleged co-worker sexual

harassment, the existence of policy may provide a defense to the underlying claim

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Such policies: By providing a forum to address employee complaints, may minimize the risk of

a retaliation claim being made Demonstrate employer willingness to receive claims and commitment not to

retaliate May help show employee’s claim not made in good faith if employee does not

use procedure Employer must be committed to and follow policy Complaints and results should be documented

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Review the policy with supervisors Supervisors must understand employee’s right to engage in protected conduct Supervisors must understand that they should report to HR any complaint made

to them Supervisors must understand their obligation not to retaliate and the

consequences if they do

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Managing the Risk Once an employee has engaged in protected activity

The employee is not immune from further adverse personnel actions Supervisors may not “crack down” on the employee Further personnel actions should be carefully monitored until the matter

related to the protected activity is resolved and for a period of time afterwards

Supervisors and others who may be the subject of the employee’s claims need to be counseled about their position, rights and responsibilities

Once an employee has engaged in protected activity Employer must make certain that the protected employee is treated the

same as a nonprotected employee in the same circumstances Knowledge of the employee’s conduct should be restricted to the extent

possible

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Thank You.

QUESTIONS?

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presented by edward c. jepson, jr. vedder price p.c. 222 north lasalle street chicago, il 60601

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