recent employment law developments
TRANSCRIPT
Recent employment law developments
Use of credit checks and fact/length of unemployment?
November 4th, Senate passes ENDA 61-30
› What will House do?
EEOC Guidance on Criminal Background Checks (2012)
Title VII & race/national origin claims
Not a prohibition on use of background check data
But guidance on when/how use of CB data may constitute discrimination (disparate impact) › Disparate treatment
v. impact?
2 recent graduates (white/Latino) apply for grounds crew position
WM pled guilty to hacking school computer/changing grades
Latino pled guilty to breaking/entering HS as prank
WM hired & Latino rejected?
Overall contact w/ criminal justice system is increasing
African-Americans & Hispanics arrested 2x-3x rate of general population
› 1:3; 1:6 and 1:17
Many criminal record databases incomplete/inaccurate
› Final dispositions (50% FBI data n/c; clerical errors; media archives, etc.)
General rule is that an arrest alone is neither proof nor evidence that criminal conduct has occurred
Reliance merely upon applicant (or employee’s) arrest is inconsistent with Guidelines
But, inquiry into underlying conduct may support personnel action
Pepsi had policy of not hiring applicants who had been arrested pending prosecution, even when never convicted and not hiring at all applicants with convictions for certain minor offenses (2012)
Pepsi agreed to settle by paying fine of
A) $33,000
B) $333,000
C) $3.13 Million
Band Director Bob is accused of inappropriate sexual relationships with 2 female students in the band and as a result of this allegation he is arrested and charged with a State law sexual offense against a minor. While denying any physical contact with the students, Bob acknowledges that
1) he has engaged in sexually suggestive banter with these and other students, or
2) he has given both of these students rides home from school in his personal vehicle and unaccompanied by any other adult, or
3) he exchanges text messages with one of the students of an inappropriate, personal nature, or
4) All of the above?
REPORTING ALLEGATIONS OF AND CIRCUMSTANCES CONCERNING CRIMES AND CRIMINAL OFFENSES
Employee Reporting Requirements
Any employee of the _____ County School District who is arrested, charged, indicted, bound over by or to a grand jury, convicted, exonerated, enters a plea, or who is nolle prosecuted for any crime or criminal offense in the State of Georgia or any other state in the United States, whether the crime or criminal offense is a felony or misdemeanor, shall immediately report in writing each and all of these events, occasions, or developments to the Superintendent of Schools or their appropriate designee as soon as reasonably practical, but no later than five (5) calendar days after its occurrence. This also includes any arrest or conviction outside of the United States.
Pepsi claimed they’ve always had a “neutral” policy…
Neutral policy disproportionately & negatively effecting protected groups
Employer defense to show policy is…
› Job related
› Consistent w/ business necessity
2 possible ways to show job related=relationship to successful performance
A-Research regarding linkage between convictions, future behaviors, traits or conduct with workplace ramifications
If employer is unable to show job-relatedness
EEOC suggests 2-step
targeted screen may be
adequate
› Review nature of criminal
offense
› Notice/consideration of
additional information by
applicant
Gravity of offense
› Harm (person/property)
Elements of offense
› Fraud?
Severity
› Misdemeanor v. felony
Time
› How far back, age of applicant (no permanent exclusion)
Nature of job
› Job description, actual & essential duties
Environment & supervision level
Online application process for all positions that automatically terminates after applicant reports conviction
If disparate impact results, EEOC likely to find violation & pursue
Individual applies for school secretary position, but b/c check shows conviction 18 months prior for credit card fraud. School discuss circumstances w/ applicant & still rejects
Okay?
Not necessarily
required, but…
Notice to individual with
opportunity to explain
Problematic School
District cases?
› Early screen w/o
interactive process
› Late screen, but still no
discussion/explanation
BMW screened former
contractors based on
unlimited (by date)
criminal background
check policy per
certain offenses
No individualized
assessment
Employees had been
working at plant with
former contractor
Dollar General sued
where 1 employee ‘s
job offer revoked over
6 year old conviction
for possession of
controlled substance
(she had 4 years
successful experience
since) and another
fired over erroneous
conviction record
This Summer, 9 AG’s (including Olens) write EEOC, criticizing expansion of EEOC’s role and extension of Title VII to protect former criminals…
EEOC response states that
› Not illegal to conduct or use CB checks
› Applying disparate impact analysis to CB cases is not new
› Debates frequency, burden of individualized assessments
Not a prohibition on use
of background checks
› But ‘mere’ arrest…
But guidance on how to
use & avoid T7 exposure
(per EEOC’s view)
Job-relatedness, or plan
B (see 2-step process w/
individual assessment)
Avoid blanket screens
early in process
