Archive for the Equal Employment Opportunity Category

Top 5 Ban the Box Myths

Top 5 Ban the Box Myths

Checkbox IconOn January 1, 2015, Illinois will become the sixth state to require private employers to remove the criminal history inquiry from employment applications. Some municipal governments have similarly “banned the box.”

Often called “Fair Chance” laws, these regulations require employers to delay asking about applicants’ criminal histories until after they have been interviewed or, in the case of Hawaii, after a job offer has been extended. Some multistate employers have removed the criminal history inquiry from their employment applications nationwide rather than try to keep up with the changing legal landscape on a state-by-state or even city-by-city basis.

The ultimate goal of groups pushing for these laws is admirable: helping former offenders successfully reintegrate into society so that they commit no future offenses. However, the argument that employers’ evaluations of job seekers’ criminal history leads to higher recidivism rates is built on a number of false assumptions. I offer five of them below.

1. There is a box.

The term “Ban the Box” suggests that the criminal history inquiry used on employment applications is simply a check box and that applicants do not have an opportunity to provide the details of their criminal history. This suggests that employers are simply asking a YES/NO question without any follow up.

This is an over-simplification of most employers’ criminal history inquiry.

Employment applications typically give applicants a space to provide the details of their criminal history, including a description of the criminal conduct in which they engaged and the dates of that conduct.

Employers can then evaluate the relevance of the conduct to the position for which the applicant is being considered and the time that has passed since the applicants’ last interaction with the criminal justice system. If the offense is not disqualifying, the employer can also compare that applicant with other qualified candidates to identify their overall best fit for the job.

2. The “box” keeps former offenders from obtaining work.

It is former offenders’ past bad conduct that impacts the hiring decision – not the criminal history inquiry (unless the applicant lies about his history).

There is no evidence that when employers learn of past bad conduct makes a difference in the evaluation of a job seeker.

3. Employers unfairly eliminate candidates from consideration based on any criminal offense.

“Ban the Box” proponents claim that as soon as employers see an affirmative answer to the criminal history inquiry, they disqualify applicants from consideration.

In fact, most employers have a nuanced approach to reviewing an applicant’s criminal history. This includes reviewing the length of the applicant’s criminal record, the crimes the applicant committed in the past, the risks associated with the job for which the applicant is being considered, and how long ago the applicant engaged in the criminal conduct. All of this information, along with skills and experience, factor into how an employer ranks one job seeker against others.

4. If an applicant is impressive during the interview, an employer is more likely to overlook their criminal history when it is eventually disclosed.

This is the intended outcome of “ban the box.” However, employment decisions shouldn’t be made this way.

Employers should not make hiring decisions based upon how clever or impressive an applicant is during the interview. Most seasoned hiring managers can share stories of applicants who were amazing during the interview but were dismal failures once hired.

Employers should base hiring decisions on candidates’ ability to do the job and fit into the employer’s culture. One objective indicator of an applicant’s fit is their past behavior – including their past criminal behavior. Some kinds of criminal behavior would clearly disqualify an applicant from certain kinds of job. Other behavior might not disqualify an applicant but may factor into how that applicant compares to other applicants with no offense history. In the latter situation, banning the box could actually work against applicants who have “played by the rules” and avoided criminal conduct.

5. Delaying the criminal history inquiry doesn’t negatively impact an employer.

For many open positions, particularly those for low-skill jobs, employers often receive dozens of employment applications. Employers can afford to interview very few of these applicants in order to make a hiring decision. For that reason, the information in the employment application is a critical tool in quickly and fairly comparing applicants with one another.

An individual’s past criminal behavior, when evaluated appropriately, may speak to his judgment, honesty, temperament, and character. When selecting which candidates to call for interviews, employers should have as much objective information about each candidate as possible so that they can fairly evaluate all those who submitted employment applications.

By design, “banning the box” leads employers to schedule and conduct interviews with candidates who, based on their past criminal behavior, are not qualified or are less qualified than other applicants for the positions for which they have applied. This is a direct cost to employers in managers’ time and effort.

On December 16th, Imperative Information Group president Mike Coffey, SPHR will be providing a free one-hour webinar for employers on how to create a criminal history evaluation tool. This program has been approved for one-hour of general recertification credit by the HR Certification Institute for credentialed HR professionals. Recordings of our previous webinars, including Background Screening Policy Considerations to Avoid Discrimination Claims and Outside of the Box: Developing a Legally Compliant and Effective Criminal History Inquiry are also available on our website.

Join Mike Coffey, SPHR at Panhandle HRA on June 3rd

Human resources consultant and background screening expert Mike Coffey, SPHR, president of Imperative Information Group, will address the Panhandle Human Resource Management Association’s monthly luncheon in Amarillo, Texas on June 3, 2014. His presentation, Background Screening Policy Considerations to Avoid Discrimination Claims, will address ways employers can avoid discrimination claims while considering job applicants’ criminal history information.

On April 25th, 2012, the Equal Employment Opportunity Commission issued new “enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.” This was the first guidance on this topic issued by the EEOC in more than 20 years and reflects the EEOC’s recent scrutiny of employers’ use of criminal records in making employment decisions. In addition to Title VII, other federal and state laws regulate employers’ use of criminal records, credit reports, and other information.

The presentation will walk employers through the process of preparing a background screening policy that helps ensure a safe and productive workforce while staying out of regulators’ and plaintiffs’ attorneys’ crosshairs. In addition to covering the EEOC’s guidance, Coffey will discuss ways to implement many of the EEOC’s recommendations, including individualized assessment of individuals with criminal histories, without creating impediments to developing a safe and productive workforce. Registration for this event is available online at

“While the EEOC guidance is not a mandate that employers must follow, it makes sense to ensure that our processes are reasonable and documented in order to defend any discrimination claims or costly litigation,” Coffey says. During the presentation, Coffey will present tools that have helped employers across the country develop and document policies regarding the use of criminal history information in making hiring decisions.

The Panhandle Human Resources Association (PHRA) is an affiliate of the Society for Human Resource Management (SHRM). PHRA was formed to educate, train and provide a forum for communication for professionals in the human resource field. PHRA provides a medium for exchange of information on subjects of mutual concern and actively works to improve the competence of human resource professionals through programs and projects.

Mike Coffey is an HR professional and president of Imperative Information Group, a background investigations firm based in Fort Worth, Texas. He is also certified as a Senior Professional in Human Resources (SPHR) by the HR Certification Institute. Coffey is a regional director for Texas SHRM and a board member for the Texas Association of Business.

Are background checks creating “a large, miserable underclass of people?”

Are background checks creating “a large, miserable underclass of people?”
Because every employer wants to create a large, disaffected, and angry population in their community.

Because every employer wants to create a large, disaffected, and angry population in their community.

Our YouTube posting of our Background Checks Under Fire webinar received this comment last week:

kckves youtube comment

Clearly, this individual assumes that any employer who includes criminal history as a criteria in making hiring decisions automatically rejects applicants with any past criminal offenses, regardless of the rest of the applicants’ qualifications.  This makes me a little crazy because this has been the extreme exception in the 15 years that I’ve been consulting with employers on these issues or in my HR career prior to that. However, I tried to be sweet and lovable in my reply:

kckves, perhaps you haven’t hide time to watch the video. If so, that is a bit ironic because you made assumptions about it based on limited information, much as you seem to believe I advocate that employers do when making hiring decisions about former offenders.

The entire point of the webinar is to give employers guidance and a tool to help determine what criminal offenses are directly related to a specific job, based on position and environment-specific risks and the age of the offense. I never advocate any blanket policy that excludes former offenders from consideration for employment simply because they have had some past criminal history.

Certainly there are certain offenses that absolutely bar those offenders from certain kinds of employment: sex offenses and positions that work with children; recent driving while intoxicated offenses for individuals who will be operating a motor vehicle or operating heavy equipment; recent theft offenses for individuals who are in cash management positions. However, there are many other jobs where these offenses would not be automatic bars to employment.

An individual’s criminal history is only one part of what they present to a prospective employer, along with their education, prior work experience, and skill set. I always encourage employers to review the full applicant, not just any one component of their background.

(Okay, maybe the opening line was a little snarky. Like I said, this makes me crazy.)

Unfortunately, this commenter’s perception of employment background screening based upon conjecture and anecdotal information is not uncommon.

The National Employment Law Project published a report in 2011 painting employers’ use of criminal history with a broad brush based upon a few anecdotes of admittedly bad practices. The next year, the EEOC published an overreaching guidance on employer’s use of criminal records, a discussion of which is the core of my webinar, Background Checks Under Fire: Policy Considerations to Avoid Discrimination Claims. Additionally, many states and municipalities have embraced some form of the Ban the Box movement, again making their decisions based on anecdotes rather than empirical data.

The good news for employers in Texas and most other states is that beyond Title VII’s expectations that employers avoid policies without a business necessity that result in a disparate impact on protected classes, there aren’t additional limitations on employers’ ability to review criminal history as a part of evaluating candidates’ fitness for positions. In fact, no plaintiff has won a Title VII claim based on an employer’s use of criminal history since 1975! However, that hasn’t stopped the EEOC from continuing to file lawsuits against employers they believe are discriminating against former offenders.

We’ve published our webinar schedule for the first half of the year. Attending those and perhaps reviewing some of our previous webinar records will help you make sure that your policies and procedures are up-to-date. Of course, you can always call me to discuss your company-specific challenges. My number is  817-921-5286 or, if you aren’t blessed enough to live in the Fort Worth area, toll-free 877-473-2287.

Alternatively, you can just anonymously blast me on YouTube.

Implicit Bias, Employee Selection, and Employment Criminal Background Checks

A Wall Street Journal column on employment background checks reinforces what I’ve shared with employers for years: a well-reasoned background screening policy included as a part of a solid sourcing and selection process benefits everyone, including job seekers in protected classes.

It’s bad enough that the Obama administration is using dodgy numbers to bring bogus racial discrimination cases. But the whole premise of the EEOC’s campaign against criminal-background checks may be off-base if the goal is to increase job opportunities for minorities, ex-offenders or anyone with a spotty work history.

On the contrary, an October 2006 study in the Journal of Law and Economics, “Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers,” found that “employers that check criminal backgrounds are in general more likely to hire African Americans,” according to Harry Holzer of Georgetown University and his two co-authors. “[T]he adverse consequence of employer-initiated background checks on the likelihood of hiring African Americans is more than offset by the positive effect of eliminating statistical discrimination.” These researchers surmise that employers who can screen for prison records are less likely to rely on prejudice when hiring.

Jason Riley: Jobless Blacks Should Cheer Background Checks – (emphasis added)

While I do take issue with laying the blame for the EEOC’s failed attempts to expand protected class status to former criminal offenders solely at the feet of the Obama Administration (this investigative and litigation focus began under President George W. Bush), the larger point is valid: Everyone benefits from a good criminal background check process.

I blogged about the cited study way back in 2006. The evidence suggesting that most people have implicit biases based on race or skin color has only grown since then, though how well they predict actual discriminatory outcomes is in dispute. (Test your own biases here.)

While our understanding of implicit bias hasn’t grown to the point where it is subject to reliable and valid measurement, anything an employer can do to eliminate it from the hiring process can only benefit the company by ensuring that applicants are evaluated based on fitness for the position and not extraneous factors.

The 2006 study’s finding that companies that used criminal background checks are more likely to hire African-Americans is perhaps explained by a paper published in May of this year entitled Reducing Implicit Racial Preferences: I. A Comparative Investigation of 18 InterventionsThis paper found that one of the most positive ways of overcoming implicit bias is to increase the number of positive experiences people have with those from other races.

In the context of the 2006 study, employment background checks seem to ease the influence of subtle prejudices hiring decision makers may hold. This increases the number of African-Americans who are hired and, consequently, are successful within the organization. In turn, the consistent exposure to qualified African-American candidates and successful African-American employees will tend to remediate hiring managers’ implicit biases over time.

Criminal History Background Checks: Discrimination or Risk Management?

Criminal History Background Checks: Discrimination or Risk Management?

TAB SHRMTSC ER Symposium 2013 165In July, I spoke at the Texas Employment Relations Symposium in San Antonio sponsored by the Texas Association of Business and SHRM Texas State Council. This is one of the finest single-day employment law conferences in the state. (Full disclosure: I sit on both organizations’ boards.)

My presentation was Background Checks Under Fire: Policy Considerations to Avoid Discrimination Claims, which is my most popular webinar and SHRM chapter presentation. My main goal with this presentation is to give employers some peace of mind – the sky isn’t falling.

Sure, last year the EEOC came out with a new guidance for employers about the use of criminal records but that isn’t a law or even a binding regulation. It is simply the EEOC’s opinion about what employers should be doing to comply with Title VII. (By the way, the Attorneys General from eight states wrote a scathing letter to the EEOC last week complaining about the EEOC’s guidance document and the recent Title VII cases against Dollar General and BMW.)

A little history: Title VII hasn’t changed with respect to this topic since 1991 and according to a Seton Law School Law Review article critcal of the EEOC’s guidance and litigation in this area, no plaintiff has won a disparate impact case related to an employers’ use of criminal records since the 1975 Eight Circuit Court of Appeals federal case Green v. Missouri Pacific Railroad.

In Green, MoPac followed “an absolute policy of refusing consideration for employment to any person convicted of a crime other than a minor traffic offense.” The court found that this very broad exclusion had a disparate impact on black applicants:

We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.  This is particularly true for blacks who have suffered and still suffer from the burdens of discrimination in our society.  To deny job opportunities to these individuals because of some conduct which may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden.

My experience is that most employers, almost 40 years after Green, have a more nuanced approach to their use of criminal records in evaluating prospective employees. They look at the the extent of the indivdiual’s criminal record and the nature of the offense(s) committed in light of the position for which the individual is being considered.

However, the EEOC’s position is that employers should give almost every applicant who might be disqualified from employment due to a relevant job-related criminal offense a chance to explain to the employer why the employer’s policy should not apply to them. I don’t know any HR people who have time to do that. However, in the webinar, I do have some practical suggestions for employers on how to approach this.

Our website has an overview of employer’s responsibilities under Title VII and other laws. Also, my free Background Checks Under Fire webinar covers this issue and, I hope, shares some practical ways to comply with Title VII and be fair to former offenders (regardless of their race) and still ensure that you have a safe and competent workforce.

In some states and municipalities, there is an emerging trend prohibiting employers from inquiring about applicants’ criminal histories on the employment application. It is a bad idea for a lot of reasons and I blogged about it last week.

The other big law affecting background checks is the Fair Credit Reporting Act. Being out of compliance here can get you in hot water pretty quickly but the good news is that FCRA compliance is simple. The Imperative website has a good one-page overview and I also have a free webinar available on that topic, too!

Compliance is important and you certainly want to keep your company out of regulators’ and lawyers’ crosshairs. However, maintaining a safe, competent, and reliable workforce is also imperative. I hope I can help you work out practical ways for your organizaiton to meet both objectives.

As always, call if I can be of service! 877-473-2287

EEOC Sues BMW and Dollar General for Criminal History Discrimination

On June 11, 2013, the EEOC filed separate Title VII disparate impact claims against BMW Manufacturing and Dollar General.

In the BMW case, the EEOC claims that BMW’s requirement that their logistics provider (basically, a contract staffing firm) follow BMW’s criminal history guidelines makes BMW a joint employer.

The EEOC complaint claims that BMW’s previous logistics provider applied their own criminal history guidelines, rather than BMW’s, and when BMW changed providers, they required the new provider to use BMW’s guidelines, which eliminated 69 of the previous logistics providers’ employees from continuing to work at the BMW facility. Some of these employees had been working at BMW’s facility for over a decade (for the previous logistics provider).

According to the EEOC’s filing, the BMW policy prohibited employment of individuals convicted of:

“’Murder, Assault & Battery, Rape, Child Abuse, Spousal Abuse (Domestic Violence), Manufacturing of Drugs, Distribution of Drugs, [and] Weapons Violations.” As further reflected in the written policy documents, “any convictions of a violent nature are conditions for employment rejection,” and “there is no statute of limitations for any of the crimes.”

A 1975 Eight Circuit Court of Appeals decision, Green v. Missouri Pacific Railroadsaid that employers should consider the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job held or sought. Depending on the specific facts related to the individuals’ excluded for employment, BMW may have a hard time defending this blanket rule that has no consideration of how long ago the offense occurred.

If the EEOC is able to support the argument that the policy resulted in a statistically disparate impact, then BMW may have to demonstrate the business necessity of their policy. The fact that many of the excluded employees had worked in the BMW facility for the previous logistics contractor, possibly without any safety or performance concerns, may undermine BMW’s business necessity argument.

Of course, it is important to remember that the EEOC’s complaint only reflects their view of the case and they are not going to include any information that might weaken their case! BMW has not responded yet.

The EEOC’s claim against Dollar General argues that their use of criminal history information resulted in “ongoing, nationwide race discrimination against Black Applicants in violation of Title VII.”

According to the EEOC, Dollar General’s background screening provider provides a “pass” or “fail” rating to Dollar General, apparently without providing them the details of the offenses found.  This pass or fail rating is based upon an adjudication matrix provided by Dollar General.  The EEOC claims in the complaint:

[Dollar General’s] utilization of its criminal convictions policy has not been demonstrated to be and is not job-related and consistent with business necessity. Moreover, the policy as applied does not provide for an individualized assessment for those applicants who receive a “fail” result to determine if the reason for the disqualification is job-related and consistent with business necessity. For example, Defendant’s policy does not allow for consideration of the age of the offender; any actual nexus between the crime and the specific job duties; employee safety, or other matters necessary to the operation of the defendant’s business; or to the time or events that have transpired since the offense. If the applicant was convicted of any of the identified offenses in the specified time frames, the employment offer is not made or the conditional offer of employment is rescinded.

The complaint also includes examples of the felony convictions that mandate a “fail” rating:

  • Felony flagrant non-support (failure to pay child or spousal support) – disqualified for 10 years
  • Felony possession of drug paraphernalia – disqualified for 10 years
  • Felony illegal dumping – disqualified for 3 years
  • Misdemeanor improper supervision of a child – disqualified for three years
  • Misdemeanor reckless driving – allowed one charge in 5 years
  • Misdemeanor failure to file an income tax return – allowed 1 charge in 5 years.

The complaint does not include Dollar General’s full list of offenses that would lead to a “fail” rating for the applicant – only those that the EEOC thought would make the Dollar General policy look bad.

It appears from the EEOC’s complaint that the policy is strictly pass/fail, with no room for management consideration of individual circumstances in grey areas. This may be a problem for Dollar General as this case proceeds.

According to the complaint, 7% of non-black employees were eliminated from consideration based on their criminal history while 10% of black applicants were eliminated. The EEOC purports to represent all black applicants who were eliminated based upon their criminal history.

There are several problems with the EEOC’s complaint. First, though they list the example offenses above that result in exclusion (presumably because they believe they are unreasonable), they don’t indicate how many applicants have been excluded based upon these offenses. From Imperative’s own experience, theft and violent offenses are more likely to be found than most of the examples above. It is likely that the court would find that many of Dollar General’s exclusions make sense.

Even if some of the disqualifying offenses and time periods are found to be unreasonable, it is very likely that many of the disqualified individuals had offenses that were job-relevant within time periods and meet the business necessity standard. Removing those individuals from the pool of applicants may significantly shrink the 3% difference between excluded black and excluded non-black applicants, making it hard for the EEOC to prove their case statistically.

Both of these will be cases to watch. For more about the legal trends surrounding employment background checks and employer’s consideration of criminal history, see our legal page and these posts.

State-mandated Employment Eligibility Limitations May Put Employers in EEOC’s Crosshairs

The issue of how to apply state law under the Equal Employment Opportunity Commission’s (“EEOC”) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 is a significant issue because the EEOC makes clear in its Enforcement Guidance that state law mandates may be pre-empted by Title VII. Which leaves those in certain industries regulated by state laws, such as healthcare, guessing as to the appropriate application of state law under the EEOC’s Enforcement Guidance.

via State Law Mandate to Conduct Criminal Background Check Isnt a Shield to a Disparate Impact Claim under Title VII | Immigration Compliance and Background Screening.

As Montserrat Miller points out in this concise post, federal law trumps state law which can put employers in a pickle when trying to comply with Title VII of the Civil Rights Act of 1964 and state-law limitations on who they can hire for certain positions.

The federal court seems to be suggesting that the employers should have pursued all possible relief with the state to avoid creating disparate impact. As I understand it, this was a legislatively-created limitation and the state board of education likely had no ability to grant a waiver.

I’m curious whether the court would have ruled differently (perhaps suggesting that the plaintiffs were suing the wrong entity) had the school district tried unsuccessfully to seek an exemption for the impacted employees from the state board of education.

Most employers have assumed that the ability to meet state licensing requirements is a bona fide occupational qualification. This decision suggests that it may not be.

One wonders about applicants whose state-issued drivers’ licenses are suspended for reasons unrelated to their driving safety (failure to pay child support, for instance). If a group of taxi drivers in a protected class were to complain that they are disproportionately impacted by the requirement that they have a valid drivers license, might they have a case under this ruling?

This is one of the topics I discuss in my Background Checks Under Fire: Policy Considerations to Avoid Discrimination Claims presentation, which I am presenting at SHRM meetings across Texas this summer.

Federal Court Rejects ADA Suit Over Random Alcohol Testing of Probationary Plant Employees

Yet another hair-brained suit by the EEOC gets batted down by the courts.

A federal judge in Pennsylvania has dismissed an Equal Employment Opportunity Commission challenge to U.S. Steel Corporation’s random alcohol testing of probationary employees at one of the company’s most safety sensitive facilities. The Court’s ruling in this carefully watched suit is significant for employers because it represents a forceful rejection of one of the more extreme positions the EEOC has taken in interpreting how the Americans with Disabilities Act (ADA) regulates workplaces.

via Federal Court Rejects ADA Suit Over Random Alcohol Testing of Probationary Plant Employees | Bracewell & Giuliani.

The Legal & Regulatory Landscape for Employment Background Screening

Employers’ use of background investigations, particularly criminal record information, is under scrutiny and, in some cases, restriction from all levels of government. This recent attention is driven by four main concerns:

  • Continued high rates of unemployment among previous criminal offenders, which many believe increases former offenders’ likelihood of committing new offenses.
  • The perception that some employers’ consideration of criminal and credit information is overly broad.
  • Employers’ failure to comply with existing consumer protection laws.
  • Poor consumer-protection practices by some employment background screening providers.

The legislative, regulatory, and judicial responses to these concerns have been varied.

The Equal Employment Opportunity Commission has been at the forefront of those questioning employers’ use of both criminal and credit history. The Commission’s belief that overly-broad use of criminal and credit history results in discrimination against individuals in protected classes has been apparent in both their investigation and prosecution strategy over the last several years.

The Commission has had mixed results in their legal efforts, losing a major disparate impact case against Kaplan Higher Education in January 2013. However, even if the EEOC is ultimately unsuccessful in a legal effort, the cost to employers in time, fees, and reputation should not be underestimated.

Last April, the EEOC issued updated guidance on employers’ use of criminal history records. The guidance is both a good primer on the history of disparate impact cases under Title VII of the Civil Rights Act of 1964 and reflective of the EEOC’s prosecution strategy over the last several years.

The Guidance reviewed the three factors that employers should consider when reviewing criminal records, which were first outlined in the 1975 Green v. Missouri Pacific Railroad federal court decision:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

Many employers have thoughtfully been using the “Green factorssuccessfully for over thirty years. However, in their 2012 guidance, the EEOC suggested an additional formal process called “individualized assessment” whereby the job applicant has an opportunity to explain why the employer’s criminal history policy should not apply to the applicant.

The guidance lists specific pieces of information that an applicant might provide and that an employer might consider in evaluating whether to make an exception to their policy. These include “the facts or circumstances surrounding the offense or conduct” (the applicant’s side of the story), the former offender’s rehabilitation efforts, and character references. They also include more objective factors such as the number of convictions and the applicant’s employment history.

The EEOC’s guidance also suggests that employers should consider removing the criminal history inquiry from the employment application or restrict the inquiry to offenses directly relevant to the position for which the individual is applying, an obviously unworkable alternative. This is part of a national trend referred to as “ban the box.”

The “box” refers to the criminal history inquiry on the application, which is sometimes accompanied by a check box for the applicant to mark indicating whether he has a criminal history. The perception driving “ban the box” is that many employers, without considering the Green factors, automatically disregard any applicant who affirmatively responds to the criminal history question.

Some states and municipalities are also placing additional restrictions on employers within their jurisdiction. Some are “banning the box” for public and/or private employers while others are prohibiting employers from considering certain offenses when making a hiring decision.

Most employers are aware of their responsibilities under the Fair Credit Reporting Act. However, recent litigation suggests that at least some employers have unknowingly been violating the FCRA’s requirements.

Including the FCRA-required background check disclosure language as part of the “small print” at the end of the employment application or including releases of liability in the disclosure document are common compliance mistakes made by employers that have led to class action FCRA lawsuits.

Failure to comply with the finer details of the FCRA’s pre-adverse and post-adverse action notification requirements has also led to class action lawsuits against employers.

Poor consumer protection practices by some background screening firms have created litigation problems for employers. Some employment background screening firms sell instant “national criminal records databases” to employers without appropriate safeguards to ensure that the information they are delivering is accurate and up to date.

When employers make hiring decisions based on this incorrect or incomplete information, the injured applicant often sues both the employer and the background screening firm. In many cases, the employer’s liability is mitigated if they have strictly followed the requirements of the Fair Credit Reporting Act. The best practice, however, is to avoid these claims altogether by requiring that the background screening firm verify all records with the original jurisdiction before reporting them to the employer. Imperative Information Group is one of the founders of Concerned CRAs, a group of like-minded background screening firms dedicated to improving consumer protection and data accuracy.

Given all of these potential pitfalls, one might ask why employers even bother conducting background checks. However, employers have a need to provide a safe and productive workplace, ensure that public safety is not threatened by putting the wrong person in the wrong position, and protect the company’s assets and reputation. These imperatives outweigh the risk of litigation, particularly where the employer has worked with their legal counsel and background screening partner to ensure compliance in their use of background checks.

The foregoing is a high-level overview of the legislative, regulatory, and litigation issues currently surrounding employers’ use of background check information. Each is discussed more in-depth in our ongoing series of free webinars approved for HRCI general recertification credit. The current schedule is always available on our Human Resources webinars page. These presentations can also be made to your SHRM chapter or other business group by Imperative Information Group’s president, Mike Coffey, SPHR.


Slides and Notes for my EEOC Criminal History Guidance Webinar Now Available

After conducting three webinars about the EEOC’s April 25th guidance document and trading innumerable emails and phone calls with clients, friends, and colleagues, I’m finally at a place where I feel comfortable releasing the Gospel According to Coffey on this topic – which is to say that I’ve mixed a lot of fact and some opinion into the presentation and I think it is a reasonable response to the new guidance.

(The rest of this post is about how the sausage was made, so you  might just want to skip down and look at the PDF file.)

The challenge in putting this presentation together is that the EEOC guidance does not exist in a vacuum, though perhaps the EEOC would suggest that it does.

The guidance is more than a “suggestion” but is certainly less than a “rule” that employers must follow. There has been little coverage of that fact in most of the traditional, business, and social media coverage of the guidance’s publication. A publicity campaign by the EEOC and public interest groups like the American Civil Liberties Union and the National Employment Law Project  trumpeting the new guidance as historic and game-changing overran the anemic responses by SHRM and the National Association of Professional Background Screeners. Thus, the media coverage tended to suggest that the new guidance was the new workplace law of the land.

Uh, not so much. Certainly, the EEOC listed a number of  impractical “best practices” that they rather heavy handedly suggest that employers adopt or get ready to be sued. However much of the guidance follows the precedent set by other documents over the last four decades: Title VII of the Civil Rights Act of 1964 (including its 1991 amendments), the Supreme Court decisions in Griggs v. Duke Power Company and Green v. Missouri Pacific Railroad, and two previous EEOC guidance documents issued over 20 years ago. The EEOC has also been signaling their interest in this topic in their investigative and litigation choices, public hearings, and intiatives like E-RACE.

Reviewing the media coverage of the guidance outside of this context would lead those unfamiliar with this history to incorrectly believe that something significant and new has happened. It hasn’t.

So, I tried to quickly cover almost forty years of history in this single presentation, including the development of the “disparate impact” theory in Griggs and Green.  At the same time, I didn’t want to miss the rest of the regulatory landscape affecting employers use of criminal records, including the “ban the box” movement and a host of other state-law considerations.

Then, I turned to try and figure out how reasonable employers who already had solid policies and good management training might address the EEOC’s suggestions of how one might avoid a discrimination suit. One of those ideas involved coopting a process already required in many cases by the Fair Credit Reporting Act, so I found myself giving a very brief primer on employers’ responsibilities under the FCRA.

The feedback from the webinar has been very positive. However, some who took our post-webinar survey suggested that some of background information was too basic for experienced HR pros while others thanked me for the in-depth review. Judge for yourself:

This file also includes all 55 pages of the guidance document. If you would rather download this PDF, click on the “View it on Slideshare” button and choose the download option.

As with everything I do, nothing is ever “good enough,” so I’ll continue to tinker with the presentation as I get feedback from the HR community. I am also working to revise the Background Checks Under Fire presentation to incorporate the EEOC’s guidance. I’m making that presentation to the Dallas-Fort Worth Staffing Management Association next week, in case you just can’t get enough of this stuff.

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