Employee Screening Rights: 3 Must Know Rules to Avoid the Wrath of the EEOC

Employee Screening
Rights: 3 Must Know
Rules to Avoid the
Wrath of the EEOC
Kevin Connell, CEO & Founder
AccuScreen.com
August 25, 2010 2-3 PM est

AccuScreen.com 800-689-2228 1
1

Wednesday, September 8, 2010

Legal Disclaimer
 I am NOT an attorney, nothing in this
Webinar should be construed as a legal
opinion.
 This Webinar is not intended as and should
not be interpreted as legal advice or a legal
opinion. Do not act or rely upon the
information in this communication without
seeking the advice of an attorney.

2


3


Agenda

3


Agenda

 8/11/2010 AP “Some job-screening
tactics challenged as illegal.”

3


Agenda

 SHRM 2010 Survey

3


Agenda

 Credit Reports

3


Agenda

 Credit Reports
 Criminal Records

3


Agenda

 Credit Reports
 EEOC & Recent Cases

3


Agenda

 Credit Reports
 EEOC & Recent Cases
 Solutions: 3 Must Know Rules
3


4


Review of AP Article

4



 8/11 Article filled with Hyperbole

4



 Misleading #’s – SHRM Survey

4



 Misleading #’s – SHRM Survey
 Attempts to scare employers about
taking necessary steps to protect: 1.)
their companies 2.) their employees
3.) their customers

4


The Truth in #’s

“Three things cannot be long
hidden: the sun, the moon, and
the truth.”

5


6


SHRM Survey: 2010

6


SHRM Survey: 2010
 Survey Snapshot

6


SHRM Survey: 2010
 Survey Snapshot

 Why do employers conduct background checks, what
type of job candidates do employers investigate, what
information in a job candidate’s consumer report
could have adverse effect on the decision to hire?

6


SHRM Survey: 2010
 Survey Snapshot

 Why do employers conduct background checks, what
type of job candidates do employers investigate, what
information in a job candidate’s consumer report
could have adverse effect on the decision to hire?

 In November 2009, SHRM conducted a comprehensive
survey that looked at background checking on job
candidates. The survey explored the primary reasons
organizations conduct background checks, the
categories of job candidates organizations conduct
background checks on and other related topics.

6


7


SHRM Survey

7


SHRM Survey

 The research was divided into the
following sections:

7


SHRM Survey

following sections:
 Providing References

7


SHRM Survey

following sections:
 Conducting Credit Background Checks

7


SHRM Survey

following sections:
 Conducting Criminal Background Checks

7


SHRM Survey

following sections:
 General Background Checks

7


SHRM Survey

following sections:
 Post-Hire Background Checks

7


SHRM Survey

following sections:
 Post-Hire Background Checks
 Drug Testing

7


SHRM Survey: Credit

8


Does your organization, or an agency hired by your
organization, conduct credit background checks for any
job candidates by reviewing the candidates’ consumer
reports?

13%

40%

47%

All job candidates
Selected job candidates
No, my organization does not conduct this type of background check for any of its job candidates

9
Note: n = 343
9


SHRM Survey: Criminal

10


Does your organization, or an agency hired by your
organization, conduct criminal background checks for
any job candidates?
7%

19%

74%

All job candidates
Selected job candidates
No, my organization does not conduct this type of background check for any of its job candidates

11
Note: n = 347. Not sure” responses were excluded from this analysis.
11


SHRM Survey-Credit

The survey was conducted with 433 Randomly
selected HR Professionals
H.R. 3149 would amend the Fair Credit Reporting Act
to prohibit the use of consumer credit checks against
prospective and current employees for the purposes
of making adverse employment decisions.

12


HR 3149: House Bill

A BILL
bit the use of consumer credit checks against prospective and current employees for the pur
ed by the Senate and House of Representatives of the United States of America in Congress

SECTION 1. SHORT TITLE.
This Act may be cited as the `Equal Employment for All Act'.

13
Note: n = 343
13


HR 3149
 SEC. 2. USE OF CREDIT CHECKS PROHIBITED FOR EMPLOYMENT
PURPOSES.
 (a) Prohibition for Employment and Adverse Action- Section 604 of the Fair
Credit Reporting Act (15 U.S.C. 1681b) is amended--
 `(1) GENERAL PROHIBITION- Except as provided in paragraph (3), a person,
including a prospective employer or current employer, may not use a
consumer report or investigative consumer report, or cause a consumer
report or investigative consumer report to be procured, with respect to any
consumer where any information contained in the report bears on the
consumer's creditworthiness, credit standing, or credit capacity--
 `(3) EXCEPTIONS- Notwithstanding the prohibitions set forth in this
subsection, and consistent with the other sections of this Act, an employer
may use a consumer report with respect to a consumer in the following
situations:
 `(A) When the consumer applies for, or currently holds, employment that
requires national security or FDIC clearance.
 `(B) When the consumer applies for, or currently holds, employment with a
State or local government agency which otherwise requires use of a
consumer report.
AccuScreen.com 800-689-2228
 `(C) When the consumer applies for, or currently holds, a supervisory, 14
14

managerial, professional, or executive position at a financial institution.

15


El vs SEPTA

15


El vs SEPTA

Douglas El vs. SEPTA

15


El vs SEPTA

 Third Circuit Rules that Employer's Blanket Exclusion of Applicants
with Prior Conviction for Violent Crime is Consistent with Business
Necessity.

15


El vs SEPTA

 Third Circuit Rules that Employer's Blanket Exclusion of Applicants
with Prior Conviction for Violent Crime is Consistent with Business
Necessity.
 Plaintiff, Douglas El, filed suit under Title VII of the Civil Rights Act of
1964 claiming that SEPTA unnecessarily disqualifies applicants
because of prior criminal convictions - a policy he argues has a
“disparate impact” on minorities. On March 19, 2007, the 3rd U.S.
Circuit Court of Appeals in El v. SEPTA affirmed the District Court’s
entry of summary judgment in favor of SEPTA. The court found that
an employer’s blanket exclusion from job consideration of candidates
with a prior conviction for a violent crime was consistent with
business necessity.
15


16


Progress Against Goals

16


Progress Against Goals

 Summary of key financial results
– Revenue
– Profit
– Key spending areas
– Headcount

16


17


Revenue and Profit

17


Revenue and Profit

 Forecast vs actual

17


Revenue and Profit

 Gross margin

17


Revenue and Profit

 Gross margin
 Important trends

17


Revenue and Profit

 Gross margin
 Compare company to rest of market

17


Revenue and Profit

 Gross margin
 Compare company to rest of market
 Use multiple slides to break out
meaningful detail

17


18


EEOC

18


19


E-Race

19


E-Race
 E-RACE= Eradicating Racism & Colorism from
Employment

19


E-Race
Employment
 EEOC through its eRACE initiative was reviewing its options for
increasing legal enforcement of the provisions of Title VII regarding
an employers’ use of applicants’ criminal and credit records.

19


E-Race
Employment
 The EEOC’s concern was the disparate impact of negative credit and
criminal background checks against members of the class in
question without an employer having sufficient valid business
necessity or there being any

19


E-Race
Employment
 The EEOC’s concern was the disparate impact of negative credit and
criminal background checks against members of the class in
question without an employer having sufficient valid business
necessity or there being any
 sufficient relationship of the adverse information to the job
requirements to justify denying employment, especially if those
records are more than a few years “old”.

19


20


EEOC Files Lawsuit vs
Freeman Companies

20


EEOC vs Freeman (9/09)
 EEOC v. Freeman d/b/a TFC Holdings Co., Case No. 09-
CV-2573 (D. Md.) (complaint filed on September 30, 2009):
Nationwide pattern and practice lawsuit alleging that a
Dallas-based convention and corporate events planning
company unlawfully discriminates against Black, Hispanic,
and male job applicants on a nationwide basis by using
credit histories and certain types of criminal arrests or
convictions as selection criteria. The EEOC alleges that the
company's use of credit histories and criminal backgrounds
as selection criteria has a "significant disparate impact in
Black applicants and that [the company's] use of criminal
history information has an adverse impact on
Hispanic and male applicants."

21


EEOC vs Peoplemark (9/08)

 EEOC v. Peoplemark, Case No. 08-CV-0907
(W.D. Mich.) (complaint filed Sept. 29,
2008): Nationwide lawsuit under Title VII on
behalf of plaintiff and similarly situated
African American applicants for employment
at Peoplemark. The complaint alleges that
the company maintains a policy which denies
hiring or employment to any person with a
criminal record and that such policy has a
disparate impact on African American
applicants.

22


EEOC: Carol Miaskoff
 Disparate Impact:
 Neutral Employment Policy or Procedure
disproportionately screens out people on a
prohibited basis
AND
 The employment policy or procedure is NOT
job-related and consistent with business
necessity for the position in question.
23


The “BIG THING” with D.I.

 Two Points to Disparate Impact:
 1.) Even if it disproportionately
impacts a certain group
 2.) It would be legal if it is validated
for the job in question and is
consistent with business necessity

24


EEOC & Criminal Record
Checks
 “It is okay to do a criminal background
check, there is no prohibition, categorically,
it is neutral.”
 “The selection criteria has to really relate to
the job in question.”
 “If you have a policy that rejects all
applicants with a Felony conviction; the
EEOC might say, OK, well show me the
validity stidy, show me the proof.”
25


Checks
 “Felonies ranging from the smallest
drug offense to the most horrendous
crime.”
 “There are obvious examples of crimes
that disqualify e.g. violent history &
working with children, crimes of graft
(bribery) or corruption and working in
a bank.”
26


Checks
 EEOC refers to sister agency,
Transportation, Port Workers
 “The only crimes that categorically
exclude you from ever working at a
U.S. Port are Treason & Espionage.”
 EEOC likes this agency model because
they have a “graduated tier of crimes.”
27


EEOC -Race-Based Charges
FY 1997 - FY 2009

The following chart represents the total number of charge receipts
ﬁled and resolved under Title VII alleging race-based
discrimination.

The data are compiled by the Ofﬁce of Research, Information and
Planning from data compiled from EEOC's Charge Data System
and, from FY 2004 forward, EEOC's Integrated Mission System.

28


29


EEOC - Title VII of the Civil Rights Act
of 1964 Charges FY 1997 - FY 2009
(includes concurrent charges with ADEA, ADA and EPA)

•The following chart represents the total number of charge receipts filed
and resolved under Title VII.
•Receipts include all charges filed under Title VII as well as those filed
concurrently under the ADA, ADEA, and/or EPA. Therefore, the sum of
receipts for all statutes will exceed total charges received.
•The data are compiled by the Office of Research, Information and
Planning from data reported via the quarterly reconciled Data Summary
Reports and compiled from EEOC's Charge Data System and, from FY
2004 forward, EEOC's Integrated Mission System.

30


3 Must Know Rules:
 1.) Don’t have an absolute exclusion of hiring
anyone who has a criminal conviction. Make sure
selection procedure is job-related and consistent
with business necessity.
 2.) Make sure that you look at the conviction as it
relates to the job. Is it necessary for the safe &
efficient performance of the job?
 3.) How long ago was the crime? How much time
has elapsed? 5 years, 10 years, 20 years - Is it in
your hiring guidelines and policy?

31


32


33


Summary

33


Summary

 Summarize key successes/challenges

33


Summary

 Reiterate key goals

33


Summary

 Reiterate key goals
 Thanks

33


AccuScreen.com Annual Top
7 Resume Lies Report
 1.) Job Title (Rank)
 2.) Education (Bogus Degrees – Diploma Mills)
 3.) Criminal Records
 4.) Salary
 5.) Dates of Employment
 6.) Professional Licenses
 7.) Ghost “Shell” Companies
34


Next Webinar

 September 9, 2010 @ 11:00 AM est
 Outrageous Resume Lies & Every
Fraudulent Websites that Enables
Fraud to Occur
 Extended Q & A

35


Contact Information
AccuScreen.com
Kevin Connell
kevinconnell@accuscreen.com
813-837-1920

Carol Miaskoff, EEOC, Assistant Legal Counsel
email: carol.miaskoff@eeoc.gov
202-663-4645

36


Employee Screening Rights: 3 Must Know Rules to Avoid the Wrath of the EEOC

Recommandé

Recommandé

Contenu connexe

En vedette

En vedette (20)

Employee Screening Rights: 3 Must Know Rules to Avoid the Wrath of the EEOC