EEOC Examines Implications of Workplace Background Checks
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- Published on Wednesday, 27 July 2011 12:24
The Equal Employment Opportunity Commission (EEOC) conducted a meeting regarding the implications of background checks, particularly those related to arrest and conviction records, on employer hiring practices. The meeting was intended to identify and highlight employers’ best practices, including the ways in which arrest and conviction records have been used appropriately, in addition to examining current legal standards. The EEOC reported that experts at the meeting emphasized that “Employers often refuse to hire people with arrest and conviction records even years after they have completed their sentences, leading to recidivism and higher social services costs.” The EEOC also reported that “Victoria Kane, an attorney with the hospitality group Portfolio Hotels & Resorts, related best practices that her company has initiated to increase the hiring and retention of people with arrest and conviction records. She urged employers to develop and implement a ‘responsible business plan’ and overcome ‘fears, biases and hiring challenges’ in order to facilitate hiring people with arrest and conviction records. Robert H. Shriver, III, Senior Policy Counsel for the Office of Personnel Management, told the Commission that, contrary to what some believe, having an arrest or conviction record does not automatically mean that a person cannot work for the federal government. Federal regulations permit agencies to consider each applicant’s unique situation...Barry A. Hartstein, a shareholder in the law firm of Littler Mendelson, who has extensive experience counseling companies in employment law, detailed to the Commission the confusing and often contradictory pressures on businesses when using arrest and conviction records in making employment decisions, including conflicting laws. Hartstein urged the Commission to consider these constraints on businesses, especially small businesses, in developing guidance or in deciding whether to pursue litigation in certain cases.” Read More.
Employers Must Ensure That Pre-Employment Background Checks Are Not Discriminatory
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- Published on Friday, 13 January 2012 07:32
As a recent Equal Employment Opportunity Commission (EEOC) case demonstrates, employers must ensure that pre-employment background checks are not discriminatory. The case involves Pepsi Beverages (Pepsi), which has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination. Based on its investigation, the EEOC found reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans was in violation of Title VII of the Civil Rights Act of 1964. According to the EEOC, more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that “disproportionately excluded black applicants from permanent employment.” Pursuant to Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for permanent jobs even if they had never been convicted of any offense. Further, Pepsi’s former policy denied employment to job applicants from employment who had been arrested or convicted of minor offenses. The EEOC contends that the “use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.” Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office commented that, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII…We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.” Read More.
Governor Brown Signs AB 22 Restricting Use Of Employee Credit Information
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- Published on Tuesday, 11 October 2011 18:26
Effective January 1, 2012, employers or prospective employers in California – with the exception of certain financial institutions – will be prohibited from obtaining consumer credit reports for use in the hiring and promotion pursuant to Assembly Bill 22 (AB 22) which Governor Jerry Brown recently signed into law. In general, AB 22 restricts the use of consumer credit reports for employment purposes. California now joins Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington as U.S. states that limit the use of credit checks by employers. Assembly member Tony Mendoza (D-56th District), introduced AB 22; it was his third attempt at similar legislation. In a press release, Rep. Mendoza commented that “This bill has the ability to put countless unemployed Californians back to work and will end the needless catch-22 that occurs when those seeking work to pay their bills cannot find it due to poor credit.” AB 22 bans the use of pre-employment credit checks for many employers. The bill also prohibits employers or prospective employers from obtaining a consumer credit report for employment purposes unless the individual is seeking employment in one of the following categories: (1) A managerial position; (2) A position in the state Department of Justice; (3) A sworn peace officer or other law enforcement position; (4) A position for which the information contained in the report is required by law to be disclosed or obtained; (5) A position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment; (6) A position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf; (7) A position that involves access to confidential or proprietary information; or (8) A position that involves regular access to $10,000 or more of cash. In addition, AB 22 also requires the written notice employer informing the individual for whom a consumer credit report is sought for employment purposes to also inform that individual of the specific reason for obtaining the report. Read More.
Pepsi to Pay $3.1 Million for Alleged Race Discrimination Related to Background Checks
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- Published on Wednesday, 11 January 2012 17:40
Pepsi Beverages Company has agreed to pay $3.1 million to settle federal charges of race discrimination for using criminal background checks to screen out job applicants. According to the Equal Employment Opportunity Commission (EEOC), the company's policy of not hiring workers with arrest records disproportionately excluded more than 300 black applicants. Pursuant to Pepsi’s policy, applicants with arrest records were not hired even if they had never been convicted of a crime. Pepsi also denied employment to those arrested or convicted of minor offenses. The EEOC says using arrest and conviction records to deny employment can be illegal if it's not relevant for the job. Pepsi has since adopted a new criminal background policy. Due to the significant issues this case raises, more information will be provided on the case as it becomes available.
U.S. Supreme Court Upholds NASA's Background Checks of Contract Employees
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- Published on Friday, 21 January 2011 05:45
The U.S. Supreme Court has held that the National Aeronautics and Space Administration's (NASA) background checks of their contract employees do not violate the employee's right to privacy. NASA has a workforce of both federal civil servants and Government contract employees. A group of contract employees at NASA's Jet Propulsion Laboratory (JPL), filed a lawsuit alleging that the background checks which they were subjected to violated their constitutional right to privacy. Specifically, they objected to two questions. The first was "SF-85" which asks whether an employee has "used, possessed, supplied, or manufactured illegal drugs" in the last year. If so, the employee must provide details, including information about "treatment or counseling received." The second was "Form 42" which asks open-ended questions about whether the individual has "any reason to question" the employee's "honesty or trustworthiness," or whether the individual has "adverse information" concerning a variety of other matters. The District Court declined to issue a preliminary injunction, but the Ninth Circuit reversed. It held that SF-85's inquiries into recent drug involvement furthered the Government's interest in combating illegal-drug use, but that the drug "treatment or counseling" question furthered no legitimate interest and was thus likely to be held unconstitutional. It also held that Form 42's open-ended questions were not narrowly tailored to meet the Government's interests in verifying contractors' identities and ensuring JPL's security, and thus also likely violated respondents' informational-privacy rights. The U.S. Supreme Court reversed holding that "the forms are reasonable in light of the Government interests at stake." The Court also observed that "The questions respondents challenge are part of a standard background check of the sort used by millions of private employers."...
