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.

1. EEOC Strategic Plan & Legally Defensible
Background Checks
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2. 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

3. Facilitators
Mike McCarty
 CEO SHS
 Metro Nashville PD
 Domestic Violence
Division
 Breaking the Cycle
 iRefCheck

4. 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

5. Guidance replaced:
 1987 EEOC Policy
Statement regarding
conviction records
 Zero tolerance policies
 3 pronged approach
 1990 Policy Guidance on
the Consideration of Arrest
Records

6. 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

7. This will not be the end….
Further restrictions coming:
 Use of credit reports
 Other barriers to employment

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. Considerations….
 Review criminal background screening
policies
 Use of arrest/ non-convictions
 Green 3 pronged test
 Zero tolerance policies

17. FCRA….
Make sure following required steps:
 Pre-Adverse Action
 Copy of background screening report
 Summary of Your Rights under FCRA
 Adverse Action Letter

18. 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

19. 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
John.hinesley@safehiringsolutions.com
Thank You for Participating