BACKGROUND CHECKS
Background Screening
Title VII
National Labor
Relations Act
Fair Credit
Reporting Act
EEOC’S STRATEGIC ENFORCEMENT
PLAN
• FY 2013 to 2016
• Eliminate barriers
• Using investigations and litigation
• Target class based intentional and facially
neutral
• Hiring and recruiting practices
• Adversely impact particular groups
EEOC’S STRATEGIC ENFORCEMENT
PLAN
• Exclusionary policies and practices
• Channeling into specific jobs
• Restrictive application processes
• The use of screening tools:
• Pre-employment testing
• Background checks
EEOC’S STRATEGIC ENFORCEMENT
PLAN
NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act
Employees shall have the right to self-organization . . .
and to engage in other concerted activities for the
purpose of . . . other mutual aid or protection
It shall be an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7
CONSUMER FINANCIAL PROTECTION
BUREAU
• Fair Credit Reporting Act
• Took over enforcement from the Federal
Trade Commission in January 2013
• Semiannual reporting – no sign of
enforcement activity
CONSUMER FINANCIAL PROTECTION
BUREAU: Consumer Report
Any communication . . . any information by a
consumer reporting agency bearing on a person’s:
• Credit
• Character
• General reputation
• Personal characteristics
• Mode of living
For employment purposes!
CONSUMER FINANCIAL PROTECTION
BUREAU: Not A Consumer Report
• Polygraph report
• Drug test
• Breathalyzer test
CONSUMER FINANCIAL PROTECTION
BUREAU: Not A Consumer Report
Communications for the purpose of employee
recruiting
Communications involving the investigation of
employee misconduct
CONSUMER FINANCIAL PROTECTION
BUREAU: Consumer Reporting Agency
Anyone who receives money
&
“Regularly” assembles or evaluates consumer reports
&
Furnishes those reports to third parties
CONSUMER FINANCIAL PROTECTION
BUREAU: Putting It Together
Mad Men Season 6, Episode 11
1. Pete Campbell is concerned about an up and comer Bob
Benson
2. Pete Campbell hires Duck Phillips to look in Bob Benson
3. Duck worked with Pete, Duck is now a recruiter
Does the FRCA Apply?
CONSUMER FINANCIAL PROTECTION
BUREAU: Putting It Together
CONSUMER FINANCIAL PROTECTION
BUREAU: Compliance
Prior to asking for a report, employer must:
1. Disclosure
2. Authorization
Certification to Consumer Reporting Agency:
1. The above has been complied with, and
2. The information is for employment purposes
CONSUMER FINANCIAL PROTECTION
BUREAU: Compliance
Pre-Adverse Action
1. Notice of what action will be
2. Give consumer report and Notice of Rights
Post-Adverse Action
1. Notice of action taken
2. Contact info for the Consumer Reporting Agency
3. Consumer Reporting Agency had not voice in the decision
4. How to get a free copy
5. Right to dispute
EEOC: Stats
Enforcement Guidance on the Consideration of Arrest
and Conviction Records in Employment Decisions
35%
30%
25%
20%
White
Hispanic
Black
15%
10%
5%
0%
Incarcerated
EEOC: Concerns
Disparate Treatment -- Intentional
Disparate Impact -- Unintentional
EEOC: Disparate Impact
Griggs v. Duke Power
EEOC: Disparate Impact
Business Necessity – how hard to prove
Excerpts for appellate court opinions:
1. Related to job performance
2. Not business convenience test
3. Irresistible demand, and no other alternative
4. Employer has no choice
EEOC: Disparate Impact
Business Necessity – from the EEOC perspective
Three factors:
1. Nature and gravity of crime
2. Elapsed time
3. Nature of the job v. crime committed
EEOC: Recommendations
1. Eliminate policies or practice that exclude convicts
2. Train
3. Develop narrowly tailored policies
SOCIAL MEDIA
SHRM 2013 Study
100
90
80
70
60
50
40
30
20
10
0
Emprs Using
Social Media
2008
2011
2013
SOCIAL MEDIA: Hiring
• Texas Labor Code §21.001
• Title VII
• ADA
• ADEA
NLRB GENERAL COUNSEL: Social Media
Acting General Counsel reports on employer social
media policies
• August 2011
• January 2012
• May 2012
Aggressively litigating
MICHAEL MELDER
6301 GASTON AVE, SUITE 730
DALLAS, TEXAS 75214
214.281.8770
WWW.MELDERLAW.COM