EEOC Guidance Released on Criminal History Record Checks!

Yesterday, April 25, 2012, the EEOC released updated guidance regarding the use of criminal records in an employment setting, entitled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”.  The full text of the guidance can be found at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. We recommend that our clients review this with legal counsel. We have provided a brief summary below which is not intended as legal advice.

The EEOC Enforcement Guidance expands on the guidance issued over twenty years ago regarding enforcement of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.  This guidance once again notes that the use of criminal history records in employment decisions could potentially have adverse impact, and therefore recommends either the use of a validation study to support the consideration of specific offenses related to a specific position, or the application of the familiar factors to be considered from the Green v. Mo.Pac. R.R., 549 F2d 1158, 1160 (8th Cir. 1977), along with the opportunity for an individual assessment or review of the decision.

The factors from the Green case are already familiar to employers.  They are:

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

CARCO recommends that the opportunity for individual assessment be included with the pre-adverse action letter.  In the letter, the candidate would be provided both with instructions to make a factual dispute and with instructions regarding how they might provide mitigating information regarding a reported offense.  CARCO would be responsible under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. to follow the appropriate re-investigation procedures, and the employer would designate an individual, position or committee to perform an individual assessment regarding the report and any candidate supplied information.  The guidance in Section V.B.9 provides examples of relevant individual evidence that could be considered.  The good news for employers is that the guidance seems to indicate that individual assessment is not required unless requested by the candidate.

The requirement for individual assessment means, however, that absent statutory requirements or clear job requirements, decision matrices with “knock out” language like “not eligible” or “disqualified” should be avoided.  (It should be noted that the EEOC specifically expresses concern about state laws that are overly restrictive. The EEOC states in the guidance that complying with state law does not shield an employer from Title VII liability. It is unclear whether the EEOC intends to pursue legal action against employers and/or the state(s) emanating from alleged Title VII violations that result from conformance with state laws requiring specific types of criminal checks and specific “knock outs”.  This is one of the most disturbing aspects of this guidance, and CARCO will be working to obtain a clarification of the EEOC’s position.)

Employers should be aware that the EEOC takes a page from the “ban-the-box” movement and recommends that employers not ask about criminal records on the application.

Throughout the guidance, examples are provided to help employers understand the concepts covered in each section.

CARCO recommends that employers pay special attention to section VIII of the guidance, “Employer Best Practices”,  which summarizes many of the recommendations contained in the guidance.

CARCO, along with other leading consumer reporting agencies,  played a significant role with various associations and organizations working to ensure the final guidance issued by the EEOC struck the proper balance between negligent hiring concerns and the protection of job applicants/employees and protected classes.  We believe the final guidance issued by the EEOC is far more balanced as a result of those efforts, and less onerous to employers than it otherwise would have been.

We look forward to working with our clients and their legal counsel to successfully apply this guidance.

Good News for the Unemployed in the District of Columbia – DC Mayor signed the Unemployed Anti-Discrimination Act of 2012

On March 19, 2012, the Mayor of the District of Columbia signed the Unemployed Anti-Discrimination Act of 2012, which prohibits employers and employment agencies from discriminating against job applicants based on their unemployment status. The Act is set to become the nation’s first law to ban the consideration of an applicant’s unemployment status in adverse hiring decisions. The Act will take effect following the statutorily mandated 30-day period of U.S. Congressional review, and publication in the District of Columbia Register.

Although the Act does not allow employees and applicants a private right of action, it is nevertheless significant in that it provides unemployed applicants and employee whistleblowers unprecedented protection from discrimination based on employment status.

Discrimination Defined

Under the Act, it is an unlawful practice for an employer or employment agency:

  • To fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of his unemployed status.
  • To publish in print, on the Internet, or in any other medium, an advertisement or announcement for any vacancy in a job for employment that includes:
    • Any provision stating or indicating that an individual’s unemployed status disqualifies the individual for the job.
    • Any provision stating or indicating that an employer or employment agency will not consider or hire an individual for employment based on that individual’s unemployed status.

Retaliation/Whistleblower Protections Defined

Under the Act, which contains broad retaliation and whistleblower protections found in other anti-discrimination laws, employers and employment agencies are prohibited from interfering with, restraining, or denying the exercise of any right specified therein. Further, the Act prohibits employers and employment agencies from failing or refusing to hire, or discharging, any employee or potential employee for:

  • opposing any practice made unlawful by the Act;
  • filing any charge, or instituting (or causing to be instituted) any proceeding relating to any right provided under the Act;
  • giving (or about to give) any information in connection with any inquiry or proceeding relating to any right provided under the Act; or
  • testifying (or about to testify) in any inquiry or proceeding relating to any right provided under the Act.

Exemptions

The Act contains three exemptions which allow employers and employment agencies to continue to engage in certain activities when filling job vacancies. Accordingly:

  • Job advertisements may contain any other lawful job qualification including:
    • the holding of a current and valid professional or occupational license;
    • a certificate, registration, permit, or other credentials; or
    • a minimum level of education, training, or professional, occupational, or field experience;
  • Employers and employment agencies may continue to examine the reasons underlying an individual’s unemployed status in assessing an individual’s ability to perform a job or in otherwise making employment decisions about that individual; and
  • Employers may limit the applicant pool to their own current employees and any advertisement can specify that only applicants who are currently employed by the employer will be considered for employment.

Enforcement and Remedy

The District of Columbia Office of Human Rights (“DCOHR”) will be responsible for handling all complaints alleging violations of the Act. Once a complaint has been filed, the DCOHR will have one month to investigate and determine whether an employer or employment agency violated the Act and assess a penalty.

Under the Act, DCOHR can assess civil penalties of $1,000 per claimant for a first violation, $5,000 per claimant for a second violation, and $10,000 per claimant for each subsequent violation (but not to exceed a total of $20,000 per violation). DCOHR will distribute the funds among any employee or potential employee who filed a claim under the Act.

Stay tuned! Similar laws are likely to follow!

U.S. Chamber of Commerce Urges the U.S. Office of Management and Budget to Open Their Guidance on Background Checks to the Public for Input

The U.S. Chamber of Commerce is urging the Office of Management and Budget to require the Equal Employment Opportunity Commission to allow public input on its new enforcement guidance regarding employers’ use of criminal background and credit checks in the hiring process.

In an April 2nd letter to Cass Sunstein, the head of OMB’s Office of Information and Regulatory Affairs, the chamber said EEOC’s potential guidance on both topics warrant OMB’s review for procedural and substantive reasons.

Chamber members have concerns that EEOC’s potential guidance on criminal convictions and credit checks will remove or significantly limit the use of two important tools that employers use in hiring and related decisions.  An additional issue for members is that many feel the upcoming guidance may make employers more vulnerable to discrimination claims over the use of background checks.

Although EEOC has held public meetings on employers’ use of background checks and individual commissioners have met with agency stakeholders to hear their concerns, EEOC “has not shared its draft guidance for the opportunity to provide comment”, said the chamber.

The guidance is expected to be made public any day now and, according to the chamber, members of the public “can only guess as to the direction that the guidance will take”.

What Employers Need to Know About the Massachusetts CORI Reform Bill which goes into effect on May 4, 2012

The Massachusetts CORI (Criminal Offender Record Information) reform bill was signed into law by the Governor on August 6, 2010. It is important to note that “Ban the box”, which prohibits employers from requiring job applicants to disclose criminal offenses on written employment applications prior to an interview, went into effect in November 2010. The most substantive changes, such as limits to CORI for employers, are effective as of May 4, 2012. Highlights of the CORI reform bill include:

  • As of May 4, 2012, CORI will be available online, and certain entities, including employers, will be permitted fee-based access to the CORI database for the purposes of evaluating job applicants;
  • Information available to employers will be limited to (1) felony convictions for 10 years following disposition, (2) misdemeanors for 5 years following disposition, and (3) pending charges.  However, if any criminal conviction qualifies to be included on an applicant’s CORI report, then all prior convictions will also appear on the report, regardless of when they occurred.
  • Employers obtaining information from the CORI database will have to certify that they are authorized to access the CORI, that it is for a legally-valid purpose, and that the applicant has signed an acknowledgement form authorizing the employer to obtain the information.
  • An employer who questions an applicant about his or her criminal history, or who makes an adverse hiring decision based upon criminal history must provide the applicant with a copy of the CORI database information.
  • Employers conducting five (5) or more criminal background checks per year must maintain a written criminal offender record information policy.
  • Employers are prohibited from maintaining CORI records of former employees or unsuccessful job applicants for more than seven years from the last date of employment or from the date of the decision not to hire the job applicant.
  • Employers who make hiring decisions based on official CORI reports within 90 days of receiving the reports shall be held harmless in negligent hiring lawsuits that allege additional criminal background checks should have been conducted.
  • Employers who continue to ask questions on initial written applications about felony or misdemeanor convictions may be subject to liability under the new law.

For more information, visit http://www.mass.gov/eopss/agencies/dcjis/

The Boston Worker’s Alliance put together a great chart summarizing differences between old and new criminal records laws. http://bostonworkersalliance.org/wp-content/uploads/cori-reform-in-massachusetts-2010-final-fact-sheet.pdf

This information should not be interpreted as legal advice.  We recommend that you check with your legal counsel to ensure that your company’s hiring policy is compliant with the Massachusetts CORI Reform Bill.