Criminal Background Screening,
Investigations & EEOC
Regulatory Compliance
.
Thomas
L. McCally, Esq
Equity Member
Carr Maloney P.C.
Steve Kroloff
Walgreens Loss Prevention
Director – Special Investigations
EEOC CRACKDOWN ON
CRIMINAL BACKGROUND CHECKS
Press Release - April 25, 2012
EEOC Issues Enforcement Guidance
Commission Updates Guidance on Employer Use of Arrest and
Conviction Records
EEOC Focuses on Cases Involving Discriminatory
Policies Impacting Multiple Employees
• The EEOC recently unleashed its four-year plan to bolster
efforts against discriminatory policies that impact multiple
employees – such as employment screening policies.
• Under the new plan, the agency will set a baseline number of
“systemic” cases that must be maintained in the litigation
docket.
• That number will increase by a certain percentage each year
until 2016.
• Under this new quota system, the EEOC will prioritize cases
involving policies that impact multiple employees when
choosing which cases to litigate.
Failure to comply with
EEOC guidelines = Exposure
U.S. Equal Employment Opportunity Commission
Press Release - January 11, 2012
• Pepsi to Pay $3.13 Million and Made Major Policy Changes to
Resolve EEOC Finding of Nationwide Hiring Discrimination
Against African Americans
• Company’s Former Use of Criminal Background Checks
Discriminated Based On Race, Agency Found
Office of Federal Contract Compliance Programs
(OFCCP) News Release - June 25, 2012
• Baldor Electric to Pay $2 Million to Settle Hiring Discrimination
Case with U.S. Labor Department
• Agreement Includes Back Wages and Interest, Some Job Offers,
for 795 Female and Minority Applicants Denied Positions at
Fort Smith, Arkansas, Facility
Weighing the Risks
Weighing the Risks
If You Don’t Conduct Background Checks:
• Potential exposure to negligent hiring/retention claims
• Potential exposure to negligence claims based on known risks
associated with job
• Duty to provide safe workplace
• Potential increased risk of workplace violence
Weighing the Risks
If You Don’t Conduct Background Checks:
• Potential harm to business (theft, embezzlement, misuse of
proprietary information) if employee engages in criminal
activity on the job
• Damage to reputation
• Economic loss due to theft
• Bad working environment
In light of these risks, many employers elect to use criminal
background checks as a screening and investigative tool.
RECENT DEVELOPMENTS
E.E.O.C. v. Freeman 2013 WL 4464553 (D.Md.,2013)
• EEOC brought action against Employer based upon
criminal background and/or credit history checks claiming
they had a discriminatory effect on African-American and
male applicants.
• Court struck EEOC expert and granted Summary Judgment
in favor of Employer
RECENT DEVELOPMENTS
EEOC v. PeopleMark: A Tale of Regulatory Overreach
• USDC for the Western District of Michigan sanctioned the
EEOC and required the EEOC to pay more than $750,000 in
attorney’s fees, expert witness fees and other costs to
PeopleMark Inc., a staffing company accused of violating
Title VII by refusing to hire anyone with a criminal record.
• Court found that the EEOC’s claims “were without
foundation from the beginning” and that the EEOC
continued to pursue its claims against PeopleMark long
after the EEOC “knew it would not be able to prove its
case.”
2011
NABPS Journal -April-May
Attorney Generals Unite
Attorney Generals of at least 9 states’ letter to the EEOC
asking it to rescind the EEOC's 2012 Guidance regarding
criminal background checks:
MAIN POINTS RAISED:
• the EEOC is improperly attempting to expand Title VII
coverage to "former criminals", a group that Title VII is not
intended to cover;
• employers have legitimate, job-related concerns,
consistent with business necessity, to apply criminal
conviction policies noting that criminal backgrounds can be
indicative of a lack of dependability, reliability, and/or
trustworthiness;
Attorney Generals Unite
• the "individual analysis" of each conviction will
unduly burden businesses with costs and regulations,
and could arguably create more opportunity for racial
discrimination; and
• “the EEOC is improperly intruding into states' rights.”
http://www.employmentlawspotlight.com/files/2013/07/E
EOC-Letter-Final-07-29-2013.pdf
Time to Check up on Your Criminal Background
Check Policies
New Guidelines: The EEOC’s Position
Arrests Should Not Be Considered
According to the recent EEOC Guidelines:
• In most cases, employers cannot consider the arrest record of
a job applicant. However, the one exception is that employers
can look at the underlying conduct that caused the arrest. For
example, if an applicant is arrested for sexually assaulting a
child, a day care center can consider the underlying context of
the arrest in making hiring decisions.
New Guidelines: The EEOC’s Position
According to the recent EEOC Guidelines:
• The arrest itself may not be considered, as the EEOC points out
that being arrested does not make one guilty of criminal
behavior. The focus must be on the events that occurred and
how the employee’s behavior impacts the employee’s
qualifications for the job.
• The EEOC also notes that due to racial profiling, many lawabiding citizens may well be arrested without cause and thus
arrest records often say more about the racial demographic of
job applicants than whether they are qualified for the job.
New Guidelines: The EEOC’s Position
Convictions
• “As a best practice, and consistent with applicable laws, the
EEOC recommends that employers not ask about convictions
on job applications and that, if and when they make such
inquiries, the inquiries be limited to convictions for which
exclusion would be job related for the position in question and
consistent with business necessity.”
New Guidelines: The EEOC’s Position
Consideration of Convictions
• Employers can consider convictions in the hiring process – with
caution. The EEOC’s updated guidance provides that criminal
records that warrant exclusion should be limited to
convictions:
− related to the position in question, and
− consistent with business necessity.
Criminal Background Check Policy
Exclusion for Criminal Conviction Must Be Job Related and
Consistent with Business Necessity
• Title VII shifts the burdens to the employer to “demonstrate
that the challenged practice is job related for the position in
question and consistent with business necessity.”
• Based on disparate impact theory of discrimination
• Griggs v. Duke Power Company, 401 U.S. 424 (1971)
“bear[s] a demonstrable relationship to successful
performance of the jobs for which it was used” and “measures
the person for the job and not the person in the abstract.”
Convictions
Determining Whether a Criminal Conduct Exclusion Is Job
Related and Consistent with Business Necessity
To establish that a criminal conduct exclusion that has a
disparate impact is job related and consistent with business
necessity, the employer needs to show:
• the policy operates to effectively link specific criminal conduct,
and its dangers, with the risks inherent in the duties of a
particular position.
Convictions
Two circumstances in which the Commission believes employers
will consistently meet the “job related and consistent with
business necessity” defense are as follows:
Validated Statistical Evaluation:
1. The employer validates the criminal conduct screen for the
position in question per the Uniform Guidelines on Employee
Selection Procedures (Uniform Guidelines) standards; or
2. The employer develops a targeted screen considering at least
the nature of the crime, time elapsed, and nature of the job
(the three Green factors) = Individualized Assessment.
Convictions
Individualized Assessment (Green* Factors)
The employer can show that a hiring decision is consistent with
business necessity by demonstrating that, in screening
applicants for criminal conduct, it
1. Considers at least the 1) nature of the crime, 2) time elapsed
since the criminal conduct occurred, and 3) nature of the
specific job in question; and
2. Gives an applicant who is excluded by the screen the
opportunity to show why he should not be excluded
(Individualized Assessment).
*Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)
Green Factors and Criminal Conduct Screens
A. The Nature and Gravity of the Offense or Conduct
• Careful consideration of the nature and gravity of the offense
or conduct is the first step in determining whether a specific
crime may be relevant to concerns about risks in a particular
position. The nature of the offense or conduct may be
assessed with reference to the harm caused by the crime
(e.g., theft causes property loss).
Green Factors and Criminal Conduct Screens
B. The Time that Has Passed Since the Offense, Conduct and/or
Completion of the Sentence
• Employer policies typically specify the duration of a criminal
conduct exclusion. While the Green court did not endorse a
specific timeframe for criminal conduct exclusions, it did
acknowledge that permanent exclusions from all
employment based on any and all offenses were not
consistent with the business necessity standard.
Green Factors and Criminal Conduct Screens
C. The Nature of the Job Held or Sought
• While a factual inquiry may begin with identifying the job
title, it also encompasses the
1. Nature of the job’s duties (e.g., data entry, lifting boxes,
security);
2. Identification of the job’s essential functions, the
circumstances under which the job is performed (e.g., the
level of supervision, oversight, and interaction with coworkers or vulnerable individuals); and
3. The environment in which the job’s duties are performed
(e.g., office, working alone or with others, out of doors, in
a warehouse, in a private home).
Individualized Assessment
Best Defense If Using Criminal Background Screens
Individualized assessment generally means:
• Employer informs the individual that he may be excluded
because of past criminal conduct;
• Provides an opportunity to the individual to demonstrate that
the exclusion does not properly apply to him; and
• Considers whether the individual’s additional information
shows that the policy as applied is not job related and
consistent with business necessity.
Individualized Assessment
The individual’s showing may include information that:
• The individual was not correctly identified in the criminal
record, or that the record is otherwise inaccurate;
• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the individual was convicted;
• Older age than at the time of conviction, or release from
prison;
Individualized Assessment
The individual’s showing may include information that:
• Evidence that the individual performed the same type of work,
post conviction, with the same or a different employer, with no
known incidents of criminal conduct;
• The length and consistency of employment history before and
after the offense or conduct;
• Rehabilitation efforts, e.g., education/training;
• Employment or character references and any other
information regarding fitness for the particular position; and
• Whether the individual is bonded under a federal, state, or
local bonding program.
Individualized Assessment
Employers Can Also Use It As a Defense
Individual must be given an opportunity to explain the criminal
conviction
• Written explanation from individual
− If not truthful then independent reason not to hire and could
help to limit damages in litigation
− Failure to provide information could be used as reason to
exclude
Individualized Assessment
Individual must be given an opportunity to explain the criminal
conviction
• Have individuals obtain certified records if they dispute
findings of the background check investigation or provide
written explanation as to why the conviction would not impact
ability to perform the job
− Failure to obtain records or to explain their position could be
a reason to exclude and help limit damages
• Link facts of criminal acts to reason not hired: facts of
conviction to risks associated with the job
• Job related and business necessity
How Can Individual Assessment Work to Employer’s
Advantage?
• Key Point: EEOC Guidelines specifically state:
If the individual does not respond to the employer’s attempt to
gather additional information about his background, the
employer may make its employment decision without the
information.
• Key Point: Policy must be based on objective factual data that
an employer can point to
− EEOC will consider
− Jury might consider
Employer Best Practices According to the EEOC
The following are examples of best practices for employers who
are considering criminal record information when making
employment decisions:
• Eliminate policies or practices that exclude people from
employment based on any criminal record.
• Train managers, hiring personnel, and decision makers.
Employer Best Practices According to the EEOC
• Develop a narrowly tailored written policy and procedure for
screening applicants and employees for criminal conduct.
− Identify essential job requirements and the actual
circumstances under which the jobs are performed (job
description).
− Determine the specific offenses that may demonstrate
unfitness for performing such jobs.
− Identify the criminal offenses based on all available evidence.
− Determine the duration of exclusions for criminal conduct
based on all available evidence.
Employer Best Practices According to the EEOC
• Develop a narrowly tailored written policy and procedure for
screening applicants and employees for criminal conduct.
− Include an individualized assessment. (Key Point: Required in
almost all circumstances.)
− Record the justification for the policy and procedures.
− Note and keep a record of consultations and research
considered in crafting the policy and procedures.
− Be consistent.
What You Should Do: Review Applications
• Consider removing questions regarding arrests.
• Consider removing general questions regarding convictions.
• If asking general questions about convictions, include a
statement on the application indicating that a conviction is not
an automatic bar to employment, then subsequently conduct
an individualized assessment.
Be Aware of Other Laws
Criminal Background Check Program
• Walgreens Loss Prevention conducts a review
“post-offer”.
• This review considers 3 factors:
– The nature and gravity of the offense or conduct
– The time that has passed since the
offense/conduct and/or completion of the
sentence
– The nature of the job held and/or sought
*A criminal conviction does not bar an applicant from
employment.
EEOC Guidance
• Do not be deterred from conducting criminal
background checks
• Remain focused in relevance of criminal
convictions to position applying for
EEOC Guidance
• EEOC urges employers to take a much more
individualized approach
• Avoid broad and exclusionary polices and
practices that fail to consider any candidates
with criminal convictions
What are the stages of the review process?
1. What happens after an application is complete?
-
Tier I – Name, SSN, and Address History
Tier II – National Crim Search
Tier III – County of Residence
2. Grading Phase
-
No criminal history results in a passing grade
Any convictions denoting a criminal history will
prompt a review
3. Individualized review process initiated
What does the individualized review entail?
A Misdemeanor or Felony Does Not Automatically Bar an Applicant from Employment
1. Fact gathering phase
- Read the disposition
- Determine the offense that resulted in a
conviction
- Research the state and federal criminal code to
determine how the code defines the crime
- If necessary, reach out to the applicant, probation
officer, or other individuals to gather more
information
What does the individualized review entail?
2. Determination Phase
- Consider the following:
- when the offense took place
- the severity of the offense
- age of applicant at the time offense
was
committed
- position applicant is seeking
Crimes of dishonesty are viewed as the most serious across all positions
EEOC Guidance
• Job related and consistent with business
necessity
• Consistency is important
• Compliance with other federal laws and/or
regulations that conflict with Title VII is a
defense to a charge of discrimination under
Title VII
EEOC Guidance
• This process may delay the hiring process.
• A majority of people pass.
• FCRA
– Third parties
– Individuals
• Regulations
– Federal
– State
– Local
Why adhere to the EEOC guidance?
• Prevent government investigations
• Prevent fines
• Prevent perception of disparate
impact/treatment
Best Practice
• Anyone with an issue or concern regarding a
criminal background check will get the
quickest response by emailing or calling the
following:
The shared email
The general background check line
* The Special Investigations team monitors these lines throughout the day
Who would pass or fail upon review?
• Matthew McConaughey has applied to be service clerk.
– Criminal conviction history of possession of marijuana
What about Michael Vick?
• Applying to be a photo tech.
– Convicted in 2007 on state and federal dog fighting
charges.
What about Winona Ryder?
• She wants to work as a shift leader.
• After being arrested for shoplifting more than $5500 worth of
merchandise, Ryder was convicted in 2002 for grand theft,
shoplifting, and vandalism.
What about OJ Simpson?
• Applying to be a service clerk
– Convicted of armed robbery, kidnapping, and theft
among other crimes in 2008
– Due only to his 2008 convictions…
QUESTIONS?
If you have further questions, please email our
presenters and reference the RILA Webinar
Steve Kroloff: steve.kroloff@walgreens.com
Tom McCally: TLM@carrmaloney.com
Thank You