eeoc strategic plan & legally defensible background checks

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EEOC Strategic Plan & Legally Defensible Background Checks The Webinar will begin shortly. While you are waiting please register for blog updates: http://info.safehiringsolutions.com Select speakers or Phone on Webinar tab

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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.

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Page 1: Eeoc strategic plan & legally defensible background checks

EEOC Strategic Plan & Legally Defensible Background Checks

The Webinar will begin shortly. While you are waiting please register for blog updates:

http://info.safehiringsolutions.com

Select speakers or Phone on Webinar tab

Page 2: Eeoc strategic plan & legally defensible background checks

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

Page 3: Eeoc strategic plan & legally defensible background checks

Facilitators

Mike McCarty CEO SHS Metro Nashville PD Domestic Violence

Division Breaking the Cycle iRefCheck

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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

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Guidance replaced:

1987 EEOC Policy Statement regarding conviction records Zero tolerance policies 3 pronged approach

1990 Policy Guidance on the Consideration of Arrest Records

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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

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This will not be the end….

Further restrictions coming: Use of credit reports Other barriers to employment

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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

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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

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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

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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

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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

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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

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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

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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

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Considerations…. Review criminal background screening

policies Use of arrest/ non-convictions Green 3 pronged test Zero tolerance policies

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FCRA….Make sure following required steps: Pre-Adverse Action

Copy of background screening report Summary of Your Rights under FCRA

Adverse Action Letter

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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

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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

[email protected]

Thank You for Participating