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Federal Agencies at Work:
New EEOC Guidance On Criminal Background Checks
and
The NLRB’s New Take On Social Media
Title Goes Here
Moderator:
Scott Brutocao
Presented By:
Bruce A. Griggs
Michael W. Fox
June 29, 2012
New EEOC Guidance On
Criminal Background Checks
EEOC Issues Guidance

Guidance summarizes the EEOC’s longheld position that employers’ reliance on
arrest and conviction records may have
a disparate impact on individuals because
of their race or national origin
Disparate Treatment and
Disparate Impact Claims
Disparate Treatment and Disparate
Impact Claims

Title VII violations may occur in two situations:
1. When employers treat criminal history differently
for different applicants/employees, based on their
race or national origin (disparate treatment) or
2. When an employer’s neutral background check
policy or practice disproportionately impacts
protected individuals (disparate impact), unless
the policy is job-related and consistent with
business necessity
1. Disparate Treatment Claims

Disparate treatment


Employer makes distinctions between two
applicants/employees of different races based on
the employer’s judgment as to the relative severity
of past criminal convictions.
“[A]n employer’s decision to reject a job applicant
based on racial or ethnic stereotypes about
criminality – rather than qualifications and suitability
for the position – is unlawful disparate treatment that
violates Title VII.”
1. Disparate Treatment Claims

Evidence used to establish discrimination in
employer’s use of criminal records:





Biased statements
Inconsistencies in the hiring process
Similarly situated comparators
Employment testing
Statistical evidence
2. Disparate Impact Claims

Majority of the Guidance discusses the
second “disparate impact” type of Title VII
race or national origin discrimination
The EEOC’s Initial Burden
Identifying the policy or practice that causes the
disparate impact
Disparate Impact Claims –
EEOC’s Burden

For a disparate impact claim, the EEOC must:
1. Identify the policy or practice causing the
disparate impact; and
2. Confirm that there is a disparate impact

The second “confirmation” step suggests more
EEOC requests for voluminous applicant and hiring
data, in evaluating disparate impact
Arrests

The Commission repeats its long-held position that
an arrest, by itself, is never job-related and
consistent with business necessity




Arrest does not establish that criminal conduct has
occurred
Individuals are presumed innocent until proven guilty
Many arrests do not result in convictions
Comports with O-D Comply: Background Checks
advice generally not to base employment decisions
on arrest records
The Employer’s Burden
The Business Necessity Defense
Disparate Impact Claims –
Employer’s Burden

Once the EEOC has established disparate
impact, the burden of proof switches to the
employer to prove affirmative defense

Policy or practice is job-related and consistent
with business necessity
Establishing the “Business
Necessity” Defense

2 ways for employers to establish the “jobrelated and consistent with business
necessity” defense:
1. Validation of criminal conduct exclusion, by
using the Uniform Guidelines on Employee
Selection Procedures
2. Targeted screening process
Targeted Screening Process

Takes into account the following 3 factors:
1) The nature and gravity of the offense or
conduct;
2) The time that has passed since the
offense, conduct, and/or completion of the
sentence; and
3) The nature of the job held or sought.
Factor #1 – Nature and Gravity of
Offense



Assessed with reference to the harm caused
by the crime
Legal elements may be instructive (e.g., felony
theft involves deception, threat, or intimidation)
Misdemeanors treated less severely than
felonies
Factor #2 – Time Passed Since
Offense



Relevant information includes how much the
risk of recidivism declines over a specified
time
EEOC cites various studies regarding
recidivism (6-15 years?)
No consensus on age of relevant criminal
records
Factor #2 – Time Passed Since
Offense

EEOC’s favorite example: 55-year old African
American paratransit driver terminated after
employer learned of his conviction for seconddegree murder 40 years earlier
Factor #3 – Nature of Job Held or
Sought

Criminal conviction should link to the
essential functions of the position in question
Factor #3 – Nature of Job Held or
Sought




Job title – starting place
Nature of job duties (e.g., data entry, lifting
boxes)
Circumstances in which job is performed (e.g.,
level of supervision, interaction with vulnerable
adults)
Job’s environment (e.g., in warehouse, private
home, etc.)
Individualized Assessment
EEOC Guidance: For any individuals “screened
out” by this targeted screening process,
employer’s policy should then provide “an
opportunity for an individualized assessment”
Individualized Assessment – Factors



Notice to individual that he/she has been
screened out because of criminal conviction
Opportunity to demonstrate that the
exclusion should not be applied due to
his/her particular circumstance
Consideration by the employer as to whether
the additional information provided by the
individual


Warrants an exception to the exclusion and
Shows that the policy as applied is not jobrelated and consistent with business
necessity.
Individualized Assessment – Factors
1. Individual’s showing that he/she was not
correctly identified in the criminal record
or that the record is otherwise inaccurate
2. Facts or circumstances surrounding offense
or conduct
3. Number of offenses for which individual was
convicted
Individualized Assessment – Factors
4. Length and consistency of employment
history before and after the offense or
conduct
5. Rehabilitation efforts (e.g., education/training)
6. Employment or character references and
any other information regarding fitness for the
particular position
7. Whether individual is bonded under a federal,
state, or local bonding program
The EEOC’s Burden (Again)
Less Discriminatory Practice
Disparate Impact Claims –
EEOC’s Burden (Again)

Even if employer successfully demonstrates
that its policy or practice is job-related and
consistent with business necessity, EEOC
may still prevail

EEOC must demonstrate there is a less
discriminatory “alternative employment
practice” that serves the employer’s legitimate
goals as effectively as the challenged
practice, but the employer refused to adopt it
Guidance and Federal Law

Compliance with federal laws and regulations
is a defense to a charge of discrimination

E.g., federal government employees, federal
security clearances
Guidance and State Law

Compliance with state and local laws does
not shield employers from violating Title VII


All 50 states and D.C. require criminal background
checks for certain occupations, such as nurses,
elder caregivers, daycare providers, and school
teachers
Counties, cities, and other municipalities
increasingly require background checks
EEOC’s Employer
Best Practices
EEOC’s Employer Best Practices
General
 Eliminate policies or practices that
automatically exclude people from
employment based on any criminal record.
EEOC’s Employer Best Practices
Developing a Policy

Develop a narrowly tailored written policy for
criminal background screening:





Identify essential job requirements
Determine the specific offenses that may demonstrate
unfitness for performing such jobs
Determine the duration of exclusions for criminal
conduct
Record the justification for the policy
Note and keep a record of consultations and
research considered in crafting the policy and
procedures.
EEOC’s Employer Best Practices
Questions about Criminal Records
 When asking questions about criminal
records, limit inquiries to records for which
exclusion would be job-related for the position
in question and consistent with business
necessity.
EEOC’s Employer Best Practices
Confidentiality
 Keep information about applicants’ and
employees’ criminal records confidential.
Only use it for the purpose for which it was
intended.
EEOC’s Employer Best Practices
Training
 Train managers, hiring officials, and decision
makers about Title VII and its prohibition on
employment discrimination, and about your
background check policy.
Takeaways
1.
2.
3.
4.
Background check practices or policies should be revised
to include targeted screening process:

Consideration of 3 factors

Individualized assessment

Policy/matrix with objective criteria that don’t
unnecessarily box you in
“Red light, green light” criminal background assessments
should be revisited

“Red light” likely over

“Green light” – still some problems here
Client requirements (e.g., “no employees with felonies”)
and state law requirements (e.g., for nurses, teachers,
etc.) will not shield employers from Title VII liability
Conviction questions on employment
application do not need to be removed – yet
Social Media – The NLRB’s New
Take
Background – Social Media Takeover Twitter, Facebook and MySpace


We are all affected by social media
Examples:




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Facebook postings
Tweets
MySpace
Jobitorial.com (formerly Jobvent.com)
Chatter.com
The Audience is Everyone

The Myth of Anonymity

The Myth of Impermanence
NLRB


Watch out for the new Labor Board’s
position on monitoring employees’ social
media activities.
The Acting General Counsel of the NLRB
has issued three reports regarding social
media cases, one on August 18, 2011, one
on January 24, 2012, and one on May 30,
2012.
NLRB

National Labor Relations Act

Section 7 rights – “protected, concerted activity”



Group of employees bringing complaint about working
conditions
Single employee with complaint related to a group
concern
Individual pursuing group action or with the purpose of
further group goals.
NLRB

To publicize union and nonunion employees’
rights to engage in Protected Concerted
Activity, on June 18, 2012 the NLRB
launched a webpage devoted to publicizing
recent cases that address the issue.
NLRB Cases

Hispanics United of Buffalo, Inc.



Employees upset about a co-worker’s criticisms of
their job performance
Initial postings - “Lydia Cruz, a coworker feels that
we don’t help our clients enough at HUB I about
had it! My fellow coworkers how d u feel?
Coworker response postings:




“What the f…Try doing my job I have 5 programs”
“What the Hell, we don’t have a life as is, What else
can we do???”
“Tell her to come to mt [my] f*#@ing job n c if I
dont’ do enough, this is just dum.”
NLRB position: these postings are protected,
concerted activity. Discussions of criticisms about
job performance are protected.
NLRB Cases

Karl Knauz Motors


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Auto dealer has promotion to show off new cars
Salesperson criticizes promotion
Salesperson posts picture of Land Rover that rolls
into a pond
Salesperson is fired
NLRB: filed complaint for Protected Activity, but
ALJ found no violation.
NLRB Cases

Frito-Lay, Inc.

Employee asks supervisor to go home early and
supervisor responds that it would result in an
attendance point against him.


After shift, employee posts:


“It’s a Damn shame when ur own boss don’t even care
about ur health. Smh I Damn there had a heart attack on
the fukin floor I bet he would let me go home if I was
wh*$#% I’m not even goin to say it lmao.”
Employee also posts:


Employee decided to stay to avoid negative attendance
impact.
“Not really just pissed lmao been there almost 5 years
and I still get treated like I jus started. I think they are
trying to give me a rason to be fired because I’m about a
hair away from setting it off in the BITCH. Hahahaha.”
NLRB position: not protected, concerted activity.

Employee’s comments were “just ranting” on his own
behalf.
What Employers Should and Must Do
 Employers should be proactive in
addressing social media.
 Address the role of social media in your
workplace.
 Follow these 10 simple steps.
What Employers Should and Must Do
1. Alert employees that their communications,
postings and/or contributions to social
media websites made on employer-owned
networks or equipment are not private.
What Employers Should and Must Do
2. Alert employees that their social media use
outside of work can have work-related
consequences.
What Employers Should and Must Do
3. Encourage employees to report any workrelated harassing conduct over social
media, even if it occurs during non-working
time.
What Employers Should and Must Do
4. If an employer actively monitors employees’
social media participation, notify employees
and obtain their authorization or consent.
•
•
Wiretap Act
Stored Communications Act
What Employers Should and Must Do
5. Be wary of accessing or reviewing
communications from an employee to an
attorney.
What Employers Should and Must Do
6. Notify employees that they should not
endorse your company’s product on social
media websites without identifying
themselves.
•
Federal Trade Commission 2010 regulations
What Employers Should and Must Do
7. Protect information about employers and
third parties.
What Employers Should and Must Do
8. Use social media to keep track of former
employees.
What Employers Should and Must Do
9. Develop some basic rules.




Be civil.
Use your instinct.
Have a policy, and review it for compliance with
the latest guidance from the NLRB
Use a disclaimer
What Employers Need to Avoid
10. Be wary of relying on information gathered
on social media to make any adverse
employment decision.
•
•
•
•
Retaliation and whistle-blowing
Off-duty conduct statutes
Discrimination
Genetic information (avoid gathering)
Federal Agencies at Work:
New EEOC Guidance On Criminal Background Checks
and
The NLRB’s New Take On Social Media
Title Goes Here
Moderator:
Scott Brutocao
Presented By:
Bruce A. Griggs
Michael W. Fox
June 29, 2012
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