eeoc strategic plan & legally defensible background checks
DESCRIPTION
The EEOC has issued new Guidance on the use of arrest and conviction records for employment. This presentation highlights the changes and provides some insight for employer compliance.TRANSCRIPT
EEOC Strategic Plan & Legally Defensible Background Checks
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Quick Update
SHS Webinars Provide education Announce new products
Upcoming webinars: Should Background Screening Be an Ongoing Process? 7/10/12 How to Conduct Comprehensive Volunteer Background Checks
7/19/12 New products:
iRefCheck ready for testing Existing employees setting/report ATS “paperless” process
Facilitators
Mike McCarty CEO SHS Metro Nashville PD Domestic Violence
Division Breaking the Cycle iRefCheck
Background
EEOC approved 2012-2016 strategic plan 4/25/12 by 4-1 vote
Guidance effective immediately
No public comment Game plan for the EEOC
field offices
Guidance replaced:
1987 EEOC Policy Statement regarding conviction records Zero tolerance policies 3 pronged approach
1990 Policy Guidance on the Consideration of Arrest Records
Commissioner Constance Smith Barker Lone Dissenter…
“Utter lack of transparency” “Public has been intentionally
shut out of this process” Places a burden on business
owners Exceeds the authority for a
regulatory commission Not congress Not courts
This will not be the end….
Further restrictions coming: Use of credit reports Other barriers to employment
Disparate Impact EEOC demonstrates the
employer’s facially neutral policy has disparate impact on a protected group
Burden is on employer to show policy is: Job related Consistent with business necessity
EEOC interested in who is being denied based on background check
Case law… Green v. MO Pacific
Railroad (1977) Zero tolerance
convictions 3 pronged approach
El v. SEPTA Murder 40 yrs ago Policy no violence 3rd Circuit Ct in favor of
SEPTA
Old Guidance…Employer could demonstrate Title
VII compliance by using 3 factors with background checks:
1. Nature & gravity of crime;
2. Time that has passed since conviction/completion of sentence; and
3. Nature of job held or sought
New Guidance
Now employers may satisfy Title VII by using internal policy if it is “narrowly tailored”
Not clear what this looks like Guidance references “targeted
screens” based on Green factors (3 prongs)
Allow applicant/employee to explain the circumstances of the conviction
Guidance list several considerations: Facts & circumstances
surrounding the offense or conduct Self reporting from candidate? How to verify?
Evidence candidate performed same type work, post conviction, with same or different employer with no incidents of criminal conduct
Employment or character references
iRefCheck can help comply…iRefCheck: Automated reference checks Competency-based surveys Candidate driven Fast. Inexpensive. Reliable Can be used to gather more
information from candidates on criminal records
Arrest records require further investigating….
Arrest alone may not be used to deny employment
Certain minority groups arrested at disproportionately higher rate
FCRA restricts reporting of arrest records to 7 yrs
Several states do not allow reporting of non-convictions
If arrested & pending Candidate dishonest
Where do we stand?
5/9/12 Congress amended Commerce, Justice and Science appropriations bill to prohibit the EEOC from using any funds to enforce guidance
Legal challenges- EEOC looking for some test cases
Considerations…. Review criminal background screening
policies Use of arrest/ non-convictions Green 3 pronged test Zero tolerance policies
FCRA….Make sure following required steps: Pre-Adverse Action
Copy of background screening report Summary of Your Rights under FCRA
Adverse Action Letter
FCRA Pre Adverse Action Letter Change “If you believe that there is additional
information that may help us better evaluate your fitness for this position, please contact us immediately.”
Could help satisfy EEOC new Guidance
Questions? Use chat box Sign up for blog: info.safehiringsolutions.com For Sample FCRA Pre-Adverse and Adverse Action Letters
contact:
John Hinesley
Manager of Compliance & Research
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