On January 31, 2013, the Office of Federal Contract Compliance Programs (OFCCP) issued a directive providing information to federal contractors and subcontractors and federally-assisted construction contractors and subcontractors (contractors) and to OFCCP personnel about complying with federal non-discrimination laws.

This directive gives notice that the OFCCP adopts the enforcement guidelines established by the Equal Employment Opportunity Commission (EEOC) on the use of arrest and conviction records in employment decisions on April 25, 2012. It contends that although individuals with criminal history records are not a protected group under the Title VII of Civil Rights Act of 1964, antidiscrimination laws may be violated when criminal records are being considered because it may lead to a disparate adverse impact on members of protected groups.

The OFCCP warns against (i) excluding people from employment based on the mere existence of a criminal history record that do not take into account other factors; (ii) placing job announcements that categorically exclude people who have any kind of conviction or arrest and of contractors that screen out job seekers with criminal records by stating that they will only accept applicants with so-called "clean" criminal records; and (iii) screening and refusing to make referrals because an applicant has a criminal history record. Covered entities are encouraged to analyze their policies and practices to ensure compliance with the guidelines.

The EEOC guidance states certain factors must be considered to determine whether criminal history information is relevant to an exclusion of employment. In determining whether criminal history information is "job related and consistent with business necessity," the employer must consider:
(a)  the nature and gravity of the offense or conduct;
(b)  the time that has passed since the offense, conduct and/or completion of the sentence; and
(c)  The nature of the job held or sought.

Additionally, the EEOC guidance strongly recommends that employers offer applicants an individualized assessment process through which they can provide additional information about the risks that they would pose to the employer.

The OFCCP also recommends other EEOC best practices, such as removing questions from applications that ask applicants to disclose their criminal history.

Finally, the OFCCP references the Employment and Training Administration’s (ETA) Guidance Letter dated May 25, 2012. The ETA’s letter is intended to help covered entities comply with their nondiscrimination obligations when serving the population of individuals with criminal records, and to ensure that exclusionary policies are not in violation of federal guidelines.

The OFCCP directive is effective immediately.

For more information, you may directly access:
OFCCP Directive No. 302: http://www.dol.gov/ofccp/regs/compliance/directives/dir306.htm
EEOC’s Enforcement Guidelines: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
ETA’s Guidance Letter: http://wdr.doleta.gov/directives/attach/TEGL/TEGL_31_11_acc.pdf

backgroundchecks.com’s general counsel hosts a free webinar every other month on how to comply with the EEOC’s guidance. You can sign up for the webinar at: http://www.backgroundbiz.com/campaigns/2012-CCEEO-Webinar-Invitation.html

According to a recent survey conducted by the Society of Human Resource Management (SHRM), the number of employers reporting that they conduct background checks on prospective employees has declined since 2010. Despite the fact that technology and online background check companies have made it easier than ever to check the backgrounds of applicants, fewer companies are looking into credit or criminal histories. This decline is thought to be due in part to the federal government and states cracking down on the checks and how they are used.

Rules passed by the EEOC in April have changed federal law dictating when and how background checks can be used for pre-employment purposes. The changes were made partially due to concerns that racial minorities and other groups could potentially be discriminated against with the way the law was written previously. This has led to confusion for some employers, leading others to abandon checks altogether for fear of breaking the law. On the state level, some states have either outright banned checks on credit history or restricted their use.

In 2010, a law passed in Illinois prohibiting pre-employment credit checks. Upon his approval of the law, Governor Pat Quinn reasoned that job applicants should be given a break due to the economic recession.

According to Mike Aitken, government affairs vice president at SHRM, the results of the survey point to the new regulations, in addition to “increased attention to the issue.” The survey results show that over one-half of those responding to the survey reported not using credit checks when hiring new employees. That’s up from 2010 numbers, where 40 percent reported they didn’t use credit history checks. The latest survey shows that 34 percent of the respondents use credit checks, and 87 percent use them for positions that entail financial responsibilities. And for employers reporting the use of criminal background checks, 28 percent said it was to comply with requirements in state law. Aitken believes that “employers are looking more closely” at the use of background checks, and are being extra cautious in ensuring that pre-employment screening practices are “related to the duties of specific positions” and are following federal law.

While the survey results may be good for those with checkered backgrounds looking for work, it is not good for the employers who have abandoned conducting background checks. By using a reputable company like backgroundchecks.com, you can be assured you are getting the best and most thorough background check screening techniques available.With access to countless criminal databases nationwide they have many options available, several with instant results. Their US OneSEARCH gives you instant information from more than 430 million criminal records from counties, Department of Corrections (DOC), Administration of Courts (AOC) and State Sex Offender Registries covering 49 states plus Washington, D.C., Puerto Rico, and Guam. Also included are national and international terrorism sources, more than 11 million photos, and their proprietary database of previously completed reports. Or try their Ongoing Criminal Monitoring tool, which allows you to automatically run a continuous background check against a name and date of birth. You will be notified via email of any new information that may appear on their record. They will run the name for one year and remind you when it is time to renew the monitoring, plus you can remove the name from being monitored at any time.

About backgroundchecks.com -

backgroundchecks.com - a founding member of the National Association of Professional Background Screeners (NAPBS®) - serves thousands of customers nationwide, from small businesses to Fortune 100 companies by providing comprehensive screening services. Headquartered in Dallas, Texas, with an Eastern Operations Center in Chapin, S.C., backgroundchecks.com is home to one of the largest online criminal conviction databases in the industry. For more information about backgroundchecks’ offerings, please visit www.backgroundchecks.com.

Source: http://lifeinc.today.msnbc.msn.com/_news/2012/07/20/12856069-job-applicant-background-checks-declining?lite

The announced crack down by the Equal Employment Opportunity Commission (EEOC) in the illegal use of criminal histories when making hiring decisions has led to confusion for many small businesses across the country. As discussed in the post EEOC Issues Guidance on Employers' Use of Criminal History in Employment Decisions, the guidelines do not prohibit the use of criminal histories uncovered during background checks in making hiring decisions, but in how the records are used.

Nebraska car dealership owner Brian Hamilton said, “We have tests that all of our managers take that keep them up to date on labor rules. But I was not aware of that one.” Hamilton employs about 160 people in his four dealerships. According to Houston labor attorney Laurence E. Stuart, “Many companies that size don’t have an H.R. person and get minimal education about compliance issues.” However, the EEOC guidelines, which aim to prohibit discrimination, have been in place since the 1970s. What is new in the policy is the requirement of employers to establish procedures showing they are not using criminal records as a way of discriminating by race or national origin.

Part of the guidelines by the commission warn to not rely on arrest records in hiring decisions. The reasoning being, “arrests are not proof of criminal conduct”, and not hiring based on an arrest record could be discrimination. But, according to the guidelines, an employer can “make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.” And an employer is allowed to not hire an applicant if a criminal conviction is discovered in their background check, if the employer is able to demonstrate the reason for exclusion is “job-related for the position in question and consistent with business necessity.

Mr. Stuart believes employers would rather have less ambiguous criteria “and a simple yes-or-no answer to a hiring decision.” But, he says that the EEOC is requiring “employers to first determine what criminal convictions might rule applicants out for each job and then judge each candidate against the job in question, which could be a painstaking process.” According to Chicago area human resources consultant Andrea Herran, “It’s almost like you’re being squeezed on both sides of the law,” Ms. Herran said. “If somebody’s making them nervous with their criminal history, and they’re worried about getting sued on the other side, what’s a business owner supposed to do?”

Find beter information than arrest records by using the services of a company like backgroundchecks.com. With access to countless criminal databases nationwide they provide several with instant results. Their background searches can uncover information from 49 states (plus Washington D.C., Guam, and Puerto Rico), even photos. Or try theirOngoing Criminal Monitoring tool, which allows you to automatically run a continuous background check against a name and date of birth, and they will notify you via email of any new information that may appear on the record. They will run the name for one year and remind you when it is time to renew the monitoring, and you can remove the name from being monitored at any time.

About backgroundchecks.com -

backgroundchecks.com - a founding member of the National Association of Professional Background Screeners (NAPBS®) - serves thousands of customers nationwide, from small businesses to Fortune 100 companies by providing comprehensive screening services. Headquartered in Dallas, Texas, with an Eastern Operations Center in Chapin, S.C., backgroundchecks.com is home to one of the largest online criminal conviction databases in the industry. For more information about backgroundchecks’ offerings, please visit www.backgroundchecks.com.

Source: http://www.nytimes.com/2012/06/21/business/smallbusiness/us-presses-on-illegal-bias-against-hiring-those-with-criminal-records.html?pagewanted=all

The Equal Employment Opportunities Commission has issued new enforcement guidance on employers' use of criminal history in employment decisions. The Commission adopted the new guidance by a vote of 4 to 1 on April 25. The new guidance and related documents are available on the EEOC's website at:

·         EEOC Press Release;

·         Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1984 (html);

·         Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1984 (pdf), and

·         Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.

Industry and legal commentary on the new guidance has generally found that the guidance does not prohibit employers use of criminal history and does not pose severe barriers. Thus far, commentary notes that employers will need to review their policies and processes and raises concerns about potential conflicts between state laws and the EEOC guidance. These commentaries include:

·         Commentary from a Human Resources Executive;

·         Detailed Commentary from Seyfarth Shaw;

·         Society for Human Resource Management Regulatory Alert, and

·         Commentary from the Society for Human Resource Management.

The EEOC has recently made available an opinion letter on the Americans with Disability Act (ADA) and its effect on hiring practices.

As with all other protected classes (e.g. race, gender, age), hiring criteria that have a disparate impact on those with disabilities are only allowed only if job-related and necessary.

In the specific scenario referenced in the letter, the EEOC states that “Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties).”

According to the EEOC, the main difference under the ADA (compared to other anti-discrimination laws) is, “Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.”

Employers should review their hiring criteria and determine whether each job requirement is necessary for the job to be done properly and eliminate those job requirements that are not necessary.

For more information on how this may affect your screening program and how backgroundchecks.com can help, please contact our client relationship representatives.

The Equal Employment Opportunity Commission announced settlement of a charge it brought against Pepsi Beverages on behalf of black applicants whom Pepsi had declined to hire due to arrests that had not resulted in convictions or to minor convictions that were not relevant to the position. Pepsi will pay over $3.1m and offer jobs to anyone in the class who is still interested in working for Pepsi.

The EEOC appears to have successfully pressed two theories:

1. According to the EEOC, “Pepsi’s former policy also denied employment to applicants from employment who had been arrested or convicted of certain minor offenses. The use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.”

This is consistent with the EEOC’s long-held position that, to hold a conviction record against an applicant, and employer must show that excluding the applicant based on the conviction is job-related and consistent with business necessity.

In explaining this position, the EEOC cited its long-standing guidance: “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.  Such exclusions can create an adverse impact based on race in violation of Title VII.”

2.    According to the EEOC, “Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense.”

This is consistent with the EEOC’s long-held position that, to hold a non-conviction against an applicant, an employer must do something beyond finding the criminal history record to determine that the applicant actually committed the offense. Once the employer concludes that the applicant actually committed the offense, then the employer must ensure that excluding the applicant is both job-related and consistent with business necessity, just as it would for a conviction record.

The EEOC’s press release on the subject is available at http://www.eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm.

Pamela Davata, an attorney who represents the National Association of Professional Background Screeners (NAPBS), commented on the action in an Associated Press article available at http://tinyurl.com/7bjamxv.

For more information on how this may affect your screening program and how backgroundchecks.com can help, please contact your client relationship representative.

The situation

A few years ago, had you asked the average businessman his personal philosophy on background screening, his response would’ve likely been something to the effect of “better safe than sorry.”  Better to screen every applicant, to eliminate any applicant with a blemish on their record, than to face a due diligence lawsuit.

Now that opinion is changing.  By taking “better safe than sorry” truly to heart, businesses have started to run afoul of the Equal Employment Opportunity Commission (EEOC).  According to the EEOC, making employment decisions (specifically hiring or retention decisions) based on arrest and convictions or on credit reports has a disparate impact on minorities.

The EEOC has also determined that they would generally analyze the following items to determine if a hiring/retention decision was a business necessity or if it was discriminatory:

1. The nature and gravity of the offense(s);
   
2. How much time has passed since the conviction and/or completion of the sentence, and
   
3. The nature of the job held or sought.

The forecast

These two differing opinions have put many businesses between a rock and a hard place. Businesses can’t stop doing background checks completely without opening themselves to due diligence lawsuits but to continue in the vein of running all checks on everyone opens the business to discrimination lawsuits.

Ideally, in order to avoid the potential lawsuits, each company would do the following:

• Look at the risks that a hypothetical criminal in a given job poses to the organization, its customers and its other employees. This can include access to people who are easily victimized (e.g. children), access to easily stolen information or things, and even access to other employees.
• Consider mitigation of those risks from the job itself. There are two major types of on-the-job risk mitigation: supervision and availability to the public. By these standards, a night watchman who would typically work alone should be subjected to a different set of checks than a cashier who would typically work with a manager nearby. Similarly, a school guidance counselor is much more private than even a teacher and should be subjected to different searches.
• Look for evidence in your applicants of the kind of criminal behavior that leads to those risks. This is where you should determine what types of checks are necessary for each applicant. Is there a financial risk with a CFO? Absolutely and that may warrant a credit check. Is there a financial risk with the mail room clerk? Unlikely and running a credit check would probably just be a waste of resources.
• Consider attenuation of that evidence due to the passage of time and any evidence of rehabilitation. The key here would be to consider your grading criteria. Can a single misdemeanor be ignored for a job class? How old is the record? Is there any evidence of rehabilitation?

What it comes down to is that each job class has a different risk profile and because of that, not each job class can be treated the same. The possible risks need to be carefully weighed for each class and policies need to be updated to reflect these risks.