A class action lawsuit has been filed against the Washington Metropolitan Area Transit Authority (WMATA) alleging unfair background screening policies that disproportionately affected African American applicants. The plaintiffs claim that qualified job applicants were not hired due to a range of criminal convictions for which the transit authority did not consider timelines of the offenses or how the crimes related to the duties of the job. They criticize the WMATA’s policy for being overly broad, unjustifiably rigid and unduly harsh.
The EEOC issued revised guidance on the use of criminal records in the hiring decisions in April 2012. The impetus behind revising the guidance stemmed from concerns that employers were using criminal history information too broadly and in a manner that potentially discriminates against legally protected classes, in particular, race and national origin.
The revised guidance more firmly outlined the 3 factors of consideration that were predominant in the prior guidance:
- The nature and severity of the crime
- The time elapsed since conviction or release from incarceration
- The nature of the job
In this case, it is alleged that WMATA disqualified current employees based on criminal histories that were not related to their job and occurred a long time ago (in some cases, 20 to 30 years). The plaintiffs deem the information irrelevant to a fair assessment of employee honesty, reliability or safety.
The suit claims the WMATA’s policies included a zero tolerance stance for drug related convictions even if the candidate was drug-free with consistent employment for ten or twenty years. One plaintiff claims he was fired from his job due to a drug-related conviction even though he had successfully worked in the position for 5 years and, further, he asserts he disclosed the conviction during the application process. The plaintiffs seek to have class members restored to their rightful positions, for applicants to be given priority consideration for job vacancies in the positions for which they are qualified, back pay and benefits, compensatory damages, front pay and damages.
Employers with practices that automatically exclude candidates from consideration just for having a criminal history may be at odds with current civil right laws unless requirements are imposed by state or federal law. Further, “Ban the Box” initiatives are sprouting up around the country that make it unlawful to ask about a candidate’s criminal history on the employment application (I.e. Have you ever been arrested or convicted of a crime?). Additional requirements and steps may be required by municipal, county and/or state laws in the use of criminal records in hiring decisions.
If your organization has not recently revisited current practices involving use of criminal records in employment decisions, we urge you to do so. The numbers of lawsuits of this type continue to rise and come with significant costs to employers who come under scrutiny.
For questions regarding this post or the EEOC’s guidance, please contact our offices at (888) 689.2000 or email@example.com.
Yesterday New York Governor Andrew Cuomo signed a new law that requires more stringent background checks for volunteer firefighters.
When considering this new law, the governor’s office recognized that firefighters are people who often interact with the most vulnerable of people, including children. The new law seeks to make communities safer by ensuring volunteer organizations keep their fire-teams free of sexual offenders and predators.
This story is not the first of its kind in NY as previously fire departments established that if a candidate applied for a position that had committed arson that they were disqualified. The amount of time firefighters spend interacting with the public, whether it is house fires or career days at local schools, without proper screening, kids and the public are potentially at risk.
Volunteer programs frequently lack a proper screening program and often have gaps that can enable individuals with a criminal record to slip through the cracks. These organizations often have limited budgets for properly screening volunteers which can make these organizations’ survival all the more difficult. Solutions do exist for these volunteer organizations that are budget conscious and still achieve a comprehensive background check that is appropriate for the types of interactions the person will have with the public or vulnerable populations (children, elderly or those who are receiving care in a medical setting).
Another option for volunteer organizations is to institute a self-pay program. These programs carry a cost of typically between $15-$25 dollars that the volunteer themselves pay. This allows the organization to screen volunteers with a professional screening firm that can ensure compliance with state and federal laws by providing information that can legally be used in making a hiring decision. Though on the surface, it may seem like a viable option, we strongly caution against ‘do it yourself’ background checks for a number of reasons. A professional screening firm can lead companies through the maze of compliance requirements and ensure that the information being used is complete, up to date and the best source.
For more information on screening volunteers or employees, contact Credential Check Corporation at 888-689-200 or firstname.lastname@example.org
Credential Check continues to monitor Ban the Box legislation and its rapid proliferation in states, counties and municipalities across the United States. Ban the Box continues to be a problematic compliance issue for employers due to the scope and rapid fire adoption rate of this legislation and employers are scrambling to adjust their processes to comply with a range of differing requirements.
Ban the Box refers to prohibiting inquiries on an application for employment into prior arrests or criminal convictions (I.e. “Have you ever been convicted of a crime?” or “Have you ever been arrested?”). Municipalities and states that have adopted this legislation seek to remove barriers to employment for those individuals who have a criminal record. These types of laws seek to give individuals with a criminal history the best chance possible of attaining gainful employment and are intended to better allow an applicant to progress through the hiring process strictly on their merit prior to their criminal history being a consideration.
Summary of the IL Law
The Illinois Job Opportunities for Qualified Applicants Act goes into effect January 1, 2015 and will prohibit private employers with 15 or more employees from inquiring into or considering an applicant’s criminal history until certain milestones in the hiring process have been met.
The candidate must first be determined qualified for the job and selected for an interview. If there is no interview, the inquiry may not be made until after a conditional job offer is made.
These requirements do not apply if:
- The State of Illinois or federal law already disqualifies a candidate with certain criminal convictions from an applied-for position.
- When a standard fidelity or equivalent bond is required and an applicant’s conviction of one or more specific offenses would disqualify him or her from obtaining said bond.
- The position is one that requires licensing under the Emergency Medical Services Systems Act.
In these cases, the employer may notify applicants in writing of the specific disqualifying offenses.
Violations for Non-Compliance
The Illinois Department of Labor investigates alleged violations and may impose civil penalties.
- First violation – written warning with 30 days to remedy.
- Second violation or first violation fails to be remedied in 30 days – civil penalty of up to $500
- Third violation, subsequent and prior not remedied violations – $1500 for every 30 days that passes.
Ban the Box legislation’s wildfire adoption in states, counties and municipalities across the country underscores the importance for employers to stay abreast of these changes and effective dates to ensure they adjust their hiring processes to remain compliant. This coupled with the EEOC’s Revised Guidance on the Use of Criminal Records, which supports the spirit of Ban the Box, states that employers must first consider the gravity or severity of the crime, the time since the crime occurred and how it relates to the job being sought equates to more than a simple policy change.
If employers are routinely inquiring into their applicant’s criminal histories on the employment application, this practice is sure to put the company at risk.
For more information about this or other states, counties and municipalities who have adopted similar legislation, please contact our office at (888) 689.2000 or email@example.com.
Optimizing Talent Management Technology
Recently, I spent 7 years successfully building a leading talent management solution company and have seen the technology utilized in many different ways. Below are some observations on optimizing these solutions:
- Eliminate paper and do not print anything unless you are required to by law. Keep the system electronic. We worked with a healthcare company that printed every application they received and filed them and also insisted that every applicant be at least phone screened. While this is an extreme example, be aware of allowing the system to do what you are paying it to do.
- You have the perfect opportunity to turn your talent management solution into your control center. Take full advantage of the automation available to you and have your solution integrate with your other vendors:
- Behavioral assessment
- Background screening (we are currently integrated with 20+ solutions)
- Employee tax credit
- HRIS, etc.
There are many more items that we could discuss. If you would like to reach out and discuss Talent Management or Background Screening please call me at (888) 689-2000 extension 5205 or email me at firstname.lastname@example.org.
By now I’m sure most of you have all seen the “French Model” commercial from State Farm which demonstrates a perfect example that just because something is on the internet it does not mean that it is true. More importantly how do you verify something from a foreign country?
Companies throughout the United States are continuously looking for new talent. This can be in the form of experience, education or travel for most candidates looking to differentiate themselves. Because of this, employers are being faced with the new challenge of validating information not on U. S. Soil but thousands of miles away. This can be a daunting task when your “French model” candidate explains that they have a degree from such and such university, which 90% of the time you have never heard of but it sounds legitimate.
Screening firms such as CredentialCheck® provide international offerings which can take the guess work out of the screening process when your candidate has lived, worked or attended school in a foreign country.
For all things screening, domestic or international contact Credential Check Corporation at 888-689-2000 or email@example.com
This group of background screening companies has grown to several hundred but the reality is that there are literally thousands of companies that offer background screening in the U.S. Why is it important to select a background screening partner that is a member of the Concerned CRAs? Member companies certify that they don’t expose you to certain risky processes that many CRAs feel are unethical. Two key positions of the Concerned CRA’s are:
Offshoring of Consumer Information: Some employment background screening firms send individuals’ sensitive personal information (i.e. social security numbers and financial account information) off-shore to be processed. We believe that sending such information off-shore places both applicants and employers at risk and should be avoided whenever possible. Alternatively, when personal information is sent to other countries, applicants and employers should be made aware of this practice in advance.
Responsible Use of Criminal Records Database: In addition, some employment background screening firms sell “national criminal records databases” to employers without appropriate safeguards to ensure that the information they are delivering is accurate and up-to-date. We believe that criminal records databases are valuable sources of information if they are used in a responsible manner. We are concerned that these practices do not appropriately protect employment applicants from avoidable harm. Likewise, employers are placed at increased risk of litigation and public relations problems when their employment background screening partners employ these practices.
For more detail on these positions see the Concerned CRAs website:
As of July 1st a new state law in California goes into effect that will apply to state agencies, as well as all cities and counties, including charter cities and special districts. The law prohibits these agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum employment qualifications for the position.
This Ban the Box type legislation was signed on October 10, 2013 and adds Section 432.9 to the Labor Code. As a result public, employers will no longer be allowed to pose any inquiry into a job candidate’s criminal past which would mean that any questions on a job application that seek to determine if the person has a prior criminal record must be removed. This law does not apply to positions for which a state or local agency is required by law to obtain criminal convictions or for criminal justice agencies.
In order to comply with the new law, public employers as noted above should:
- Remove conviction inquiries from employment (written or electronic)applications Employers cannot inquire about a candidate’s conviction history on the employment application (written, oral or electronic forms)
- Policy Amendments The employer must not inquire into convictions until after the employer has determined if the applicant has met minimum employment qualifications. The employer’s policy should identify what those minimum qualifications are.
Existing California law currently prohibits both public and private employers from asking an applicant for employment to disclose any information concerning an arrest that did not result in a conviction.
For more information on this topic or HR related topics, please contact us at 888-689-2000 or firstname.lastname@example.org
A lot of good information has again been shared at the 2014 National SHRM Conference. There was a good bit of buzz about the presentation that was done by Robin Roberts of Good Morning America at the opening session. Robin overcame breast cancer then found out that she had bone marrow cancer (she had a bone marrow transplant). She is speaking and writing about her life and sharing it with a wide audience.
It is easy in this fast-paced, stressful world to focus on process, policies, procedures, and compliance, all of which are very critical. Robin in her opening talk focused on the “human” in human resources. Her message was one of humanity and strength. She asked HR professionals to be patient with others. Appropriately the title of her new book is “Everybody’s Got Something.”
To find out more about Robin’s book click here: http://www.hachettebookgroup.com/titles/robin-roberts/everybodys-got-something/9781455578450/
The US Citizenship and Immigration Services (USCIS) will be hosting a virtual forum for employers on June 23, 2014 from 1:00 pm to 3:30 pm Eastern time.
The misuse of E-Verify and improper completion of the Form I-9 both made our list of top areas of non-compliance for employers. Many companies underestimate the potential for not completing the Form I-9 properly and worse, underestimate the possible outcomes for non-compliance should they be audited.
You may be thinking that this form is easy to complete, but, being on the front line, talking to organizations and reviewing their files, we invariably find that many companies have errors and inaccuracies on their forms. There are over 150 possible errors that can be made on the Form I-9 and each is a finable action. We also find that many employers are unclear about when and how they can utilize E-Verify. It is important for employers to be compliant on both counts and this virtual forum is an excellent opportunity to hear about these programs and to ask questions.
During this session, the Department of Homeland Security and USCIS officials will discuss new program innovations, best practices and answer questions relating to employment eligibility verification processes. Employers can also expect to hear a discussion on the future and present state of E-Verify and current information regarding Form I-9 for Employment Eligibility Verification. You do not have to be a current E-Verify user to participate.
Participants may attend this session in-person at one of the USCIS offices in Washington, DC, Fairfax, VA, Charlotte, NC or Atlanta, GA areas or via the Internet through live Web stream, or by teleconference.
To register, please select the appropriate link and provide your full name and, if applicable, the name of your organization, by following the steps below:
Join the Session in Person:
Participate by Phone or Internet:
Please visit the USCIS registration page to register for this event. You’ll be prompted to enter your email address (password is optional). Once your registration is processed, you will receive a confirmation email with additional details. If you have any questions regarding the registration process, or if you have not received a confirmation email within two business days after you register, please email Public.Engagement@uscis.dhs.gov.
The House Committee on Education & Workforce held a hearing today at 10:00 am ET to examine the concerns with the Equal Employment Opportunity Commission’s (EEOC) activities and their guidance on the use of criminal information in hiring decisions. The EEOC is tasked with enforcing federal laws that prohibit employment discrimination, including the Americans with Disabilities Act and Title VII of the Civil Rights Act. Members of the committee expressed concerns with the EEOC’s recent guidance that greatly impacts employers’ use of criminal background checks in the hiring process.
The witnesses included Camille Olson, Partner, at Seyfarth Shaw, who spoke on behalf of the US Chamber of Commerce, Todd McCracken, President of the National Small Business Association, Sherrilyn Ifill, President and Director of the NAACP Legal Defense and Educational Fund and Lucian Bone, Founder of the Sue Weaver Cause.
Ms. Olson indicated that significant concerns exist regarding the EEOC’s guidance and relatively recent activities to enforce the laws for which they have oversight. She notes that that the EEOC has opted to aggressively and improperly litigate against employers as opposed to making conciliation efforts as it is required to do. She testified that the track record of the EEOC’s success for these cases has been poor, and, as a result, criticized by judges who commented that their arguments were circular, unpersuasive and unreasonable and their litigation efforts even “frivolous”. The cases failed from both fact and force of law perspectives. As a result, the EEOC was ordered to pay defendants’ attorney fees in excess of $4.7 million dollars, which is typically only imposed in cases where the litigation was discernibly unwarranted.
Mr. McCracken of the National Small Business Association testified that the guidance is complicated, confusing and not articulated in a way that business owners can understand, let alone comply with. He pointed out that a small business owner may be forced to comply with a state screening mandate, yet, not be immune to an EEOC challenge for complying with that state law.
Ms. Ifill’s testimony supported the EEOC’s efforts and she believes that the guidance helps employers to identify the proper use of criminal information in the hiring process. She did, however, point out that re-entry systems for ex-offenders is in need of reform.
Lucia Bone testified that the focus on the rights of ex-offenders is misplaced when it takes precedence over those of the public from a safety perspective. She also noted that there are many reasons for the recidivism rate including drug and alcohol addiction and lack of family structure and vocational training. She urged that the guidance be suspended until all sides can be fairly represented in the testimony that previously excluded the voice of victims which ultimately lead to an unbalanced guidance.
It is also important to note that the EEOC is not a rule making body yet many contend that the guidance attempts to reach beyond the EEOC’s powers and endeavors to have force of law. The Chairman read comments that allege that the EEOC is “in search of theory with no facts to support it” and is on a “fishing” expedition.
We applaud this congressional committee’s efforts as well as those by several governmental offices, legislators and State Attorneys General to scrutinize the EEOC’s guidance and actively work to keep these concerns being heard. We hope the EEOC will respond in a meaningful way to the ongoing concerns expressed about their aggressive litigation activities against employers related to their revised guidance on the use of criminal records in hiring decisions. Clearly, given their repeated failures to successfully litigate against employers and the overwhelming degree of criticism over the revised guidance, it is a sure sign that they are running afoul of their mission.
For more information about this or other workforce screening topics, please contact our office at (888) 689.2000 or email@example.com.