Background Screening: Recent Litigation Trends
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Transcript of Background Screening: Recent Litigation Trends
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
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The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
The Basic Truths About Background Screening:Recent Litigation Trends
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Trak-1 is an Accredited Member of NAPBS
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Your Host: Rick ColtmanDirector of Strategic Marketing and Alliances, Trak-1 Technology, Inc.
• Please Post Any Questions or Comments You Have in the Comments Section.
• Want Further Information or Have Additional Questions? Contact Trak-1 at [email protected]
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Your Presenter: Matt GrahamVP of Operations, Trak-1
Technology, Inc.
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Quick RefresherFCRA
The Fair Credit Reporting Act Applies ToAll Background Screening By A Consumer Reporting Agency (CRA)
Not Just CreditNot Just EmployeesNot Just Criminal
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Goals of the FCRA• Protect the Privacy of Consumer
Report Information • Guarantee That the Information
Supplied By Consumer Reporting Agencies is as Accurate s Possible
• Inaccurate or Incomplete Consumer Reports Could Cause Applicants to Be Denied Jobs or Cause Employees to Be Denied Promotions Unjustly
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
EEOC Revises Enforcement Guidance
• April 25, 2012 (Last Updated Over 20 Years Ago)
• Interprets Title VII Of Civil Rights Act, ADA, ADEA, GINA, EPA
• Starts From The Premise That Using Criminal Records In Employment Decisions, Absent Additional Considerations, Has a Disparate Impact
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Factors To Consider
The Nature and Gravity of the
Offense(s)
The Time That Has Passed Since
Conviction/Sentence
The Nature Of The Position Held/Sought
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Individualized Assessment• The Facts or Circumstances
Surrounding the Offense or Conduct
• The Number of Offenses For Which the Individual Was Convicted
• Older Age at The Time of Conviction, or Release From Prison
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
• Evidence That The Individual Performed The Same Type Of Work, Post Conviction With The Same Or A Different Employer, With No Known Incidents Of Criminal Conduct
• The Length And Consistency Of Employment History Before And After The Offense Or Conduct
• Rehabilitation Efforts, E.G., Education/Training
Individualized Assessment
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
• Employment or Character References and any Other Information Regarding Fitness For the Particular Position
• Whether The Individual is Bonded Under a Federal, State, or Local Bonding Program.
Individualized Assessment
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
EEOC Best Practices
• Eliminate Policies or Practices That Exclude People From Employment Based on Any Criminal Record
• Develop a Narrowly Tailored Written Policy and Procedures For Screening For Criminal Records
• Train Managers, Hiring Officials, and Decision-makers About Title VII and Its Prohibition on Employment Discrimination
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
• Identify Essential Job Requirements and The Actual Circumstances Under Which The Jobs are Performed
• Determine The Specific Offenses That May Demonstrate Unfitness For Performing Such Jobs
EEOC Best Practices
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
• Determine The Duration of Exclusions For Criminal Conduct Based on All Available Evidence
• Record The Justification For The Policy and Procedures
• Keep a Record Of Consultations and Research Considered in Crafting The Policy and Procedures
EEOC Best Practices
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Summary Of EEOC Guidance
1. Change Your Application2. Review Your Authorization/Disclosure
3. Customize Your Screening Based on The Functions of The Positions
4. Support Your Matrix With Science/Statistics5. Adjust Decision Criteria
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Case Examples
Freeman BMW
Dollar General
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
EEOC Before The Guidance
FREEMAN CASE
Black Eye For EEOC
Multiple Procedural and Expert Witness
Issues
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
• Expert Analysis “Distorted”, “Both Over-inclusive And Under-inclusive”, and, “An Egregious Example Of Scientific Dishonesty”
• Failed To Show Disparate Impact Stemming From A Specific Employment Practice
FREEMAN CASE
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
• Offered The Job Before Conducting The Background Screening
• Only Considered Convictions Or Releases From Prison Occurring Within The Last Seven Years
• Evaluated Offenses In Terms Of Job-relatedness
• Rated Crimes Based On Severity
FREEMAN CASE
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
• Reviewed Warrants and Gave Applicants a Reasonable Amount of Time To Resolve Them.
• Upper HR Officials Reviewed Recommendations of “Not To Hire”
• Restricted Use of Credit Checks To Those Handling Consumer Credit Cards, Money and Customer’s Property of Value
FREEMAN CASE
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
• Avoid Exposure To Negligent Hire/Retention Lawsuits
• Increase Security of Its Assets And Employees• Reduce Liability From Inconsistent Hiring or
Screening Practices• Proactively Reduce The Risk of Employee-
related Loss• Mitigate The Likelihood of Adverse Incidents
Occurring on Their Property That Could Jeopardize Employee or Consumer Confidence
FREEMAN CASE
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Application Of EEOC Guidance
Employees With Long-standing History of Success With The Company Were Not Retained When a
Subsequent Background Check Turned Up a Criminal Past
BMW CASE
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
One Applicant Denied a Cashier Position Because of 6 Year Old Drug Conviction In Spite of Previous Position
With Another Discount Retailer as a Cashier-stocker For Four Years
Another Applicant Advised Store Manager of an
Incorrect Background Check Report But Company Refused To Hire Anyway
DOLLAR GENERAL CASEApplication Of EEOC
Guidance
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
AGs Letter to EEOC (7/29/13)
• Nine Attorneys General Send Letter To EEOC– Drop Cases, Rescind Guidance
• Unlawful Expansion Of Title VII• State Law Interference• Burden On Business
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
EEOC Response To AGs (8/29/13)
• Updates Longstanding Policy• Does Not Urge Or Require Individualized
Assessment• Encourages Two-step Process
– Targeted Screening, Individualized Assessment
• Guidance Doesn’t Preempt, Title VII Does
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Recent Class Action Cases
• State Farm (Case No. 5:14-cv-00151; E.D. Ky.) April 18, 2014
• US Foods, Inc. (Case No. 8:14-cv-00612; C.D. Cal.) April 18, 2014
• Walmart (Case No. 3:14-cv-00208; E.D. Va.) March 24, 2014
• Disney (Case No. BC 526351; Superior Court of California) November 1, 2013
• Whole Foods (Case No. 3:14-cv-00592; N.D. Cal.) February 7, 2014
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Take Away Points1. Understand EEOC’s Guidance On Using Criminal
Records2. Review Your Application3. Review Disclosure And Authorization Forms4. Confirm You Are Providing Adverse Action Notices5. Remember FCRA Allows For $100 - $1000 Per
Violation
The Basic Truths About Background Screening, Part 9Copyright © 2015. TRAK-1 Technology, Inc. All Rights Reserved.
Name Matching
Copyright © 2014. Trak-1. Produced by Business Performance- USA/Global, LLC. Graphics by Ligature Group, LLC. All Rights Reserved.
1.800.600.8999 www.trak-1.com
Contact Matt Graham directly or talk with Trak-1’s FCRA certified screening professionals and begin –
Ruling In The Right People!
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