An Experts Guide to
Navigating the Minefield of
Recruiting and Employment
Screening Laws
Presenter
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Presenter
Jason Morris – President & COO
Morris is a Licensed Private Investigator in the States of Ohio,
New Jersey, Texas, Illinois, Arizona and Nevada. Morris also
serves as an Expert Witness in the areas of background checks,
employment screening and the FCRA.
•President & Chief Operating Officer - EmployeeScreenIQ
•Past Chairman – National Association of Professional Background Screeners (NAPBS)
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My Diploma
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My Diploma - $295.00
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My Diploma - $295.00
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My Diploma - $295.00
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My Diploma - $295.00
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What you will learn today!
• Social Media Uses and Misuses
• New EEOC Criminal Guidance
• State and Federal Laws on the Horizon
• Questions and Answers
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So My Candidate’s Not An Angel?
NEW YORK—Lorem
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minor reiot posni creal.
Pepsi Beverages Pays $3.1
Million to Settle Federal
Race Discrimination Charges
WASHINGTON—Pepsi Beverages Co. will pay $3.1
million to settle federal charges of race discrimination for
using criminal background checks to screen out job
applicants—even if they weren’t convicted of a crime.
The settlement announced Wednesday with the Equal
Employment Opportunity Commission is part of a
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So My Candidate’s Not An Angel?
Madison Square Garden suit hinges
on alleged background check
Do criminal background
checks lead to bias?
The EEOC will have to
weigh that question
when it investigates
discrimination charges
filed against Madison
Square Garden by
Charlene Clarke.
Clarke, a black woman
from the Bronx, accepted
a food worker position at
The Garden in
September 2007. One
month later, the arena
withdrew its offer after
Clarke’s background
check revealed a
misdemeanor assault
charge five years ago.
Employers have a right to
use criminal background
checks to screen
applicants, as long as the
charges relate directly
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to the job in question.
But Clarke’s complaint
asserts that the arena’s
withdrawal of her
employment offer
violated Title VII of the
Civil Rights Act. Her
complaint alleges “a
pattern and practice of
discrimination against
African-American
applicants for jobs at MSG.”
So My Candidate’s Not An Angel?
Lawsuit: Accenture Sued for
Discrimination Over Background Checks
NEW YORK, NY—
Accenture, one of the
largest management
consulting firms in the
world, conducts
background checks that
discriminate against
African Americans and
Latinos, a class action
lawsuit filed in New York
federal court today
alleges.
The lawsuit, filed on
behalf of Roberto J.
Arroyo, of Morristown,
N.J., accuses Accenture
of violating Title VII of
the Civil Rights Act of
1964 by rejecting or
firing qualified
individuals who have
criminal records even
where the criminal
history has no bearing on
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the individual's fitness or
ability to perform the job.
According to the Complaint,
“Such policies and practices
are illegal because they adopt
and perpetuate the racial
disparities in the American
criminal justice system ...
For decades, the Supreme
Court and the EEOC have
recognized that overly broad
Are Employers Using Social Media?
NEW YORK—Lorem
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tuthe ndrerit vitae, pha
retraeufelis. Vesti buluma
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moles tievelfacilisisar ut
real nos tenon mi trio mon.
Aliqua mconse nuestra ti
minor reiot posni creal.
CareerBuilder Survey: August
2010
WASHINGTON—45 percent of employers surveyed
reported using social networking sites to research job
candidates’ backgrounds for information that verified –
or supplemented – the information on their resumes. A
huge increase from the 22 percent of hiring managers
who said the same thing in 2009.
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Admit It. You Can’t Resist
Social Media Landscape
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Meet Jason Morris?
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FCRA
Lawsuits
Discrimination
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EEOC
Litigation
Legislation
Loss Prevention
Negligent Hiring
Risk Management
Compliance Landscape
Social Media and Background Checks
• Type of information that may be useful:
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–
–
–
–
–
–
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Complaints about current employer
Excessive use of social media during work hours
Suggestive photos
Falsification of work history/education history
Illegal drug use
Racial slurs
Other illegal activity
Culture fit
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Social Media and Background Checks
• Disadvantages:
– Information may
– Information may
discrimination
– Information may
– Information may
not be related to the job
not be permissible—risk of
be inaccurate
violate right to privacy
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Social Media and Background Checks
• Discrimination: Title VII of the Civil Rights Act,
Age Discrimination in Employment Act,
Americans with Disabilities Act
• Fair Credit Reporting Act
• State Laws
• Privacy
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Discrimination
• Title VII Civil Rights Act:
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– “Protected Class”
– Race
– Color
– National Origin
– Religion
– Gender
Applies to hiring, promotion, demotion, compensation
and transfer
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Discrimination
• Gaskell v. University of Kentucky
– Gaskell was #1 candidate for a position as the director of
the University Observatory
– Member of the search committee looked up his website
and writings in a personal website on the Internet
– Personal website article: “Modern Astronomy, the Bible,
Creation”
– http://incolor.inetnebr.com/gaskell/Martin_Gaskell_Bible_As
tronomy.html
– E-mails circulated within the committee expressing
concerns over “creationist” views
– Committee said Gaskell’s religious beliefs would be a
“matter of concern” and he was not hired.
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Meet Martin Gaskell
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Discrimination
• Case settled January 2011
• University paid Gaskell $125,000
• Lessons:
– Can’t “un-ring” the bell—once you look, and the
information is seen by the decision maker, it is hard to
deny it is a factor in the decision process
– Search committee in this case documented everything
in their e-mail
– Search committee was not trained on antidiscrimination laws and use of web-based information
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Fair Credit Reporting Act
• FCRA Requires “Maximum Possible Accuracy”
• If the FCRA applies to a social networking
search conducted by a third party, the issues
with accuracy include:
– User generated content
– Very difficult to verify information (education, past
employers)
– Anyone can set up a site with false identifiers and
images
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Policies and Best Practices
• Develop policies on the use of social media in the hiring
process
• Consider removing the search process from the decision
maker
• Make sure “screeners” and all HR personnel are well
versed in Title VII protected class status and applicable
laws
• Draft policies on what may and may not be considered
• Consider asking applicants to disclose or provide access
to information as part of the process (consult with legal
counsel)
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Policies and Best Practices
• Consider providing applicant with the opportunity to
respond/dispute accuracy
• If information is relevant to a bona fide occupational
qualification (BFOQ), communicate to the applicant
with the advice of legal counsel
• Be aware of state laws
• Review website privacy policies and limitations of
use
• If you engage a third party, be sure to follow FCRA
– Authorization and disclosure
– Adverse action
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EEOC Guidance
• Guidance not Law (What does that mean?)
• Supersedes statements given in 1987 and 1990
on conviction and arrest records
• Guidance
– Validations Studies
– Targeted Screening with Individualized Assessments
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EEOC Guidance - Continued
• Best Practices
– Ban the Box!
– Develop a narrowly tailored written policy and procedure for
screening applicants
– The policy should identify essential job requirements and the
actual circumstances under which the jobs are performed
– Determine specific offenses that may demonstrate unfitness for
performing such jobs, duration of exclusions for criminal conduct
– Record the justification for the policy, procedures and exclusions,
including a record of consultations and research considered in
crafting the policy and procedures
– Train managers, hiring officials, and decision makers on how to
implement the policy and procedures consistent with Title VII
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EEOC Guidance - Continued
Practical Implications for Employers
• Eliminate policies that exclude applicants with any criminal record.
• Review your paper job applications and pre-hire documents. If you
are using an ATS or web based applicant entry system, consider
removing any inquires about criminal history from the application.
• Limit inquiries about criminal convictions to those which are job
related.
• While individual assessment is not required by Title VII, the
guidance implies that without it, you will have a more difficult
defense. No examples are given of a scenario where an employer is
successful without individualized assessment.
• If an individual does not respond to an employer’s request for
additional information, the employer can make a final decision
without the additional information. How long or under what
circumstances an employer must wait is not clear.
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EEOC Guidance - Continued
Practical Implications for Employers – Con’t
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If you use a third party CRA to conduct criminal screenings, review your packages
and their reporting policies to ensure compliance.
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If you use a third party CRA to adjudicate criminal results, consider building in a
review process to comply with the individualized assessment recommendations.
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Consider FCRA adverse action procedures and ways to incorporate the request for
additional information needed for individualized assessments.
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Note that simply having a reputation for discouraging applicants based on race may
invite investigation by the EEOC.
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Large applicant pools have greater potential for disparate impact, so big employers
with high turnover should seek counsel in determining the best means of compliance.
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Compliance with a Federal law/mandate that conflicts with the Guidance is a defense.
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State and local mandates are NOT a defense. They are pre-empted by Title VII if
they “purport to require or permit the doing of any act which would be an unlawful
employment practice” under Title VII.
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State Laws
• CA protects sexual orientation, marital status,
pregnancy, cancer, political affiliations, genetic
characteristics, gender identity.
• “Ban the Box” Laws: limit the information that
can be gathered on an employment application
or used prior to hiring.
• Other State Laws on the Horizon
– CA Consumer Report Freeze
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Where are we finding the records?
*According to EmployeeScreenIQ Statistics
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How far back?
*According to EmployeeScreenIQ Statistics
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Who Cares About Accreditation?
Pick Your Pilot
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Thank You
jmorris@employeescreen.com