FTC and EEOC Issue Background Check and Employment Guidance Documents for Employers and Consumers

The Equal Employment Opportunity Commission (EEOC) and the Fair Trade Commission (FTC) has released two guidance documents explaining employers’ duties and the rights of consumers in regard to employment-related background checks.

While the documents do not reveal information not already covered by previous EEOC guidance releases, their joint publication and release by the federal agencies highlight the focus by the FTC and EEOC in pursuing employer compliance with all aspects of the law when background checks are used to make employment decisions.

These publications offer simple and concise guidance for employers and applicants/employees.  A-Check recommends employers spend a few minutes reviewing their contents and compare them to their current background check policies to ensure compliance.

Background Checks – What Employers Need to Know (PDF)
Background Checks – What Job Applicants and Employees Need to Know (PDF)

have a Compliance Question? Ask: compliance@acheckamerica.com
Please keep in mind A-Check does not offer legal advice.

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EEOC Provides Guidance on Pre-employment Disability Related Examinations & Questions About Workers’ Comp & Occupational Injuries

When may an employer ask questions about an applicant’s prior workers’ compensation claims or occupational injuries?
An employer may ask questions about an applicant’s prior workers’ compensation claims or occupational injuries after it has made a conditional offer of employment, but before employment has begun, as long as it asks the same questions of all entering employees in the same job category. Continue reading “EEOC Provides Guidance on Pre-employment Disability Related Examinations & Questions About Workers’ Comp & Occupational Injuries”

EEOC Announces Record Year in Securing Enforcement Penalties from Employers

Compliance with regulatory agency guidance key to hiring litigation mitigation

The Equal Employment Opportunity Commission (EEOC) recently disclosed it took in a record $365.4 million dollars from employers this year through its private sector administrative enforcement program, a $700,000 increase over last year.

About ten percent, or $36.2 million, resulted from conciliation agreements or settlements related to systemic employment violations, a primary focus of activity identified by the EEOC, a four-fold increase from the previous fiscal year.

The Commission also recovered $44.2 million through its litigation program. Overall, there were a total of 122 lawsuits on the merits filed by Commission offices nationwide.

The government agency appears to be pushing ahead with its aggressive investigative practices and broad interpretations of federal anti-discrimination laws in its pursuit of ending workplace discrimination on behalf of a wide variety of worker groups.

Employers can expect the agency to focus on the following in 2013:

Litigation of national and regional class-action cases

Employers can expect a continued increase in “company-wide” investigations. Employers caught in the agency’s sights will unfortunately be burdened with the cost of defending these investigations and lawsuits.

Discrimination in recruitment and hiring on the basis of disparate impact
In light of the EEOC April 2012 Enforcement Guidance regarding the use of criminal records information in hiring, it is safe to assume improper reporting and use background checks that include criminal records components will be a focus.

ADA – Reasonable accommodations enforcement

Enforcement of the Americans with Disabilities Act, focusing on reasonable accommodations, including investigations of no-fault attendance and fixed-leave policies and 100-percent healed policies, in which employers require employees to be 100-percent healed before being permitted to return to work from medical or disability leave.

Developing workplace issues

Including discrimination against members of the lesbian, gay, bisexual, and transgender (LGBT) community, and pregnancy leave policies.

Vew the EEOC 2012-2016 Strategic Plan
View EEOC Press Releases detailing Enforcement and Litigation Activity

Use of Criminal Records Data – Best Practices

Best Practices for Employers in Light of EEOC Guidance on Use of Criminal Records

Summary

Employers’ use of background screening for job applicants should be reevaluated after the EEOC’s April 25, 2012, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

The EEOC noted that an employer’s facially neutral policy can adversely affect an employee or applicant with a criminal history and have a disparate impact based on prohibited characteristics, such as race and national origin.

Per the EEOC’s Guidance, an employer cannot now simply reject an applicant because of his/her criminal record under an employer’s exclusionary policy. In the wake of the EEOC’s Guidance, employers using criminal background screening should now be prepared to prove a solid business reason (job necessity) for seeking the information.

Best Practices

The EEOC’s Guidance does not mean that employers should abandon [Criminal Records] background screening altogether. In fact, to do so could run afoul of an employer’s obligation to use reasonable care when hiring employees and lead to liability if third parties are harmed by an employee. Many courts have held an employer liable for an employee’s actions if the employer fails to conduct a reasonable investigation into the employee’s background prior to hiring.

In an effort to comply with these obligations without running afoul of Title VII with respect to criminal background policies, employers should at a minimum review their policies. In this regard, it is recommended that:

Employers develop a narrowly tailored written policy and procedures for screening applicants and employees for criminal conduct.

Employers identify in the policy the essential job requirements and the actual circumstances under which the jobs are performed.

The policy should determine the specific offenses that may demonstrate unfitness for performing such jobs and the duration of exclusions for criminal conduct.

Employers record the justification for the policy, procedures and exclusions, including a record of consultations and research considered in crafting the policy and procedures.

Employers train managers, hiring officials and decision makers on how to implement the policy and procedures consistent with Title VII.

Employers need to craft policies and procedures for conducting criminal background checks carefully, considering both the new EEOC Guidance and the need to provide a safe workplace with honest, productive employees.

Source: Reevaluating Employment Background Checks after the EEOC’s Guidance.Wilson Elser Moskowitz Edelman & Dicker LLP. By Sherril M. Colombo and Michelle Bergman.

NOTICE: The material presented in this communication is not to be construed as legal advice from A-Check America, Inc. but rather, a summary of the research conducted and material gathered on the subject matter. For additional information or guidance, please consult qualified legal counsel.

EEOC Releases Important Guidance on the Use of Criminal Records for Employment Purposes

On April 25, 2012 The Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights act of 1964,with the purpose shoring up the EEOC’s efforts against discrimination in the workplace based on disparate impact against persons with criminal history records.

All employers who utilize criminal records information to make employment decisions are strongly urged to review the EEOC’s guidance document and accompanying analysis, which provide the details about specific requirements employers must follow.

The Guideline addresses the use of arrests in particular and pending case record information, and strongly discourages employers from asking on employment applications if an individual has ever been arrested and/or convicted of a crime; a legislative trend in labor law also known as the “Ban the Box” initiative.

The EEOC strongly rejected, on the basis of disparate impact on protected classes, employer policies that include blanket denial of employment for specific crimes, with some exceptions, including instances when the nature of the crime has a direct nexus to the position sought or when the licensing requirements for specific professions preclude certain types of crimes.

The Guideline further develops the existing Title VII provisions to be applied by employers when making a hiring decision on persons with existing criminal records –

  1. Nature and gravity of the offense. Further defined by indicating that employers must take into account the harm caused by the offense, the legal elements of the crime, and the offense classification (misdemeanor or felony).
  2. Time elapsed since the conviction and/or completion of the sentence. Further defined by indicating that employers must look at the facts and circumstances of the offense and evaluate possible recidivism.
  3. Nature of the job held or sought. Further defined by indicating that employers must go beyond looking at the job title and examine specific job duties, functions, and environment in which the individual will function.

The Guideline expands on the EEOC’s expectation of employer-driven individualized assessment of prospect employees with criminal records, which include eight (8) specific determining factors, and provides a “Best Practices” section for employers to follow in the hiring process of persons with criminal conviction records.

While this guidance places a significant burden on employers to objectively analyze and assess the risk of an individual with a criminal record, the silver lining is it provides employers and employee screening companies like A-Check a clearer path to follow in the acceptable use of criminal records for employment purposes while maintaining compliance with Title VII requirements.

Please note that while we are giving you a bird’s eye overview of the new Guidance, these and several other provisions reinforced and implemented through the April 25th EEOC release are complex in nature and should be looked at closely by employers; furthermore, we strongly encourage you to seek the advice of legal counsel.

Following are preliminary resources on the subject matter that will assist you in getting up to speed with the EEOC’s new Enforcement Guidance.

View the Complete Guidance Document:
Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964

View an analysis by Labor Law Experts at Seyfarth Shaw LLP:
How Should Employers Use Criminal History in Employment Now That The EEOC Has Issued Enforcement Guidance?