NYS Governor, Andrew Cuomo, announced that state officials will no longer ask job applicants about prior criminal convictions until after they have been interviewed. The new policy was among a dozen initiatives announced by Gov. Cuomo earlier this week to ease the path for ex-cons seeking to re-start their lives.
Glenn Martin, who is a member of the state’s panel and the founder of advocacy organization JustLeadership USA, said, “This is important because 83% of people who violate parole and probation are unemployed at the time of violation and there’s a close correlation between having a job and staying out of trouble.”
In addition to the change in state hiring practice, the executive actions will make it easier for felons to get occupational licenses, help newly released inmates get state IDs, give prisoners a chance to save money behind bars, and ban discrimination based on criminal records in New York-financed housing.
The new policy coincides with the City Council’s recent “Fair Chance Act,” which restricts private employers from asking about arrest and conviction records or conducting a background check until after they’ve made a conditional job offer.
It’s no secret in the HR/Talent Acquisition world that the biggest business challenge right now is finding and retaining good employees. There are some industries that are being hit harder than others. Unfortunately, according to SHRM’s recent article entitled “The10 Toughest Jobs to Fill in 2016”, it appears that “next year is shaping up to be even tougher as corporate pressure mounts to attract candidates who match the skill sets most in demand. “
Companies are being more creative and flexible with their talent acquisition strategies by using workforce planning and predictive analytics to create a solid recruitment strategy well before any specific jobs need to be filled. Some companies are establishing relationships with colleges as recruitment sources, while others are targeting specific groups as sources for quality candidates.
As the workforce continues to age and technology continues to evolve, demand for qualified employees will rise. While companies should focus on finding the right strategy to find qualified employees, it is also more important than ever to ensure that every touch point in your hiring process is a positive one for new employees – from onboarding to background screening to orientation and getting the employee up to speed and assimilated in an effective and efficient manner.
As many HR/Talent Acquisition managers know, it’s only half the battle to recruit qualified employees. The other half is retain them!
To see the full list of toughest jobs to fill, go to:
Once again, a company has been sued for improperly disclosing its background check procedure. We have been reporting other class actions on this same issue for some time. If you haven’t already done so, HR managers must review your hiring process and ensure that it is compliant.
On September 16th, a plaintiff filed a putative class action against Chipotle Mexican Grill, Inc. alleging violations of the Fair Credit Reporting Act (FCRA) over its background check disclosure practices.
According to the complaint, the plaintiff alleges that Chipotle improperly procured prospective employees’ background checks after failing to adequately disclose the company’s background check procedures.
According to the plaintiff, Chipotle’s background check disclosure was not a stand-alone document consisting solely of information on the company’s background check procedures, a violation of the FCRA. Specifically, the plaintiff said that “under the FCRA, it is unlawful to procure or cause to be procured, a consumer report or investigative consumer report for employment purposes, unless the disclosure is made in a document that consists solely of the disclosure and the consumer has authorized in writing the procurement of the report.”
Mejia v. Chipotle Mexican Grill, Inc. et al., No.5:15-cv-01911 (C.D. Cal., Sep. 16, 2015).
On September 16th, Representative Steve Cohen (D-TN) introduced HR 3524, the Equal Employment for All Act. The Senate version, S. 1981, is sponsored by Senator Elizabeth Warren (D-MA) and was introduced on August 5th. The bill would “amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.”
According to Cohen, HR 3524 seeks to “protect job seekers from unfair discrimination from employers based on credit ratings that are often inaccurate and bear little to no correlation to job performance or ability to succeed in the workplace.” Specifically, Cohen’s statement asserts that the bill “would protect prospective employees from being forced to disclose their credit history as part of an employer’s application process.”
According to the text of S. 1981, “a person, including a prospective employer or current employer,” may not use a consumer report or procure a consumer report on any consumer during the background screening process that contains information on the consumer’s creditworthiness, credit standing, or credit capacity:
- For employment purposes; or
- For making an adverse action, as listed in the bill.
S. 1981: http://www.gpo.gov/fdsys/pkg/BILLS-114s1981is/pdf/BILLS-114s1981is.pdf
Here’s an update to our previous blog on Colin Speer v. Whole Foods Market Group Inc.
Whole Foods Market Group Inc. settled a class action lawsuit for violations to the Fair Credit Reporting Act (FCRA) concerning their employee background check notification methods. The settlement amount of $803,000 will be split between approximately 20,000 class members, which would leave each class member with a payment of about $24.
The named plaintiff and former employee, Colin Speer, sued the grocery store alleging that it wasn’t clear and conspicuous to potential employees that they were being notified of a background check because it wasn’t in a single document format. Speer claimed that Whole Food’s application process “violated the FCRA due to the inclusion of a liability waiver in its FCRA disclosure.”
According to the Whole Foods class action settlement agreement, the grocery food chain “denies that it engaged in any wrongdoing,” nor do they admit or concede any actual or potential fault. However, the defendant claimed that if a jury found them liable they could have to pay between $100 to $1,000 to each class member so they agreed to the settlement amount.
Colin Speer v. Whole Foods Market Group, Inc., case number 8:14-cv-03035
On September 8th, the U.S. Equal Employment Opportunity Commission (EEOC) announced that BMW Manufacturing Co., LLC (BMW) entered into a consent decree, requiring BMW to pay $1.6 million to settle EEOC allegations that the car manufacturer discriminated against African American logistics employees through application of criminal background checks which had a disparate impact and lead to said employees’ termination.
Under the consent decree, BMW is enjoined from use of the criminal background check guidelines which were in effect. Additionally, the consent decree lays out key requirements for BMW and its logistics provider, including:
- They agree not to decline to hire any job applicant or otherwise disqualify any individual in a logistics position because of “criminal arrests or charges of any type are uncovered in the background screening process if such arrests or charges did not result in a conviction.”
- They can, however, postpone an offer of employment if there is a pending charge, pending resolution of the charge.
- They must conduct an individualized assessment if they seek to disqualify any job applicant based on criminal history. Meaning they must provide written notice to the job applicant describing the criminal history which is at issue, and an offer to the applicant to explain the conviction and their appropriateness for employment
- Above notice must be delivered by “reasonable means” and must afford the job applicant a period of at least 21 days during which time they can contact BMW or the logistics provider before an adverse employment decision is finalized.
- They must appoint an official to review all final decisions to decline to hire or otherwise disqualify an applicant due to criminal history.
U.S. Equal Employment Opportunity Commission v. BMW Manufacturing Co., LLC, Sept. 8, 2015 (7:13-cv-01583)
On September 3rd, plaintiffs filed a putative class action against Uber Technologies, Inc. and a contractor for alleged violations of the FCRA over the ridesharing company’s employment screening practices.
According to the complaint, the plaintiff alleges that Uber and its contractor denied prospective employees the opportunity to dispute inaccurate information on their consumer reports and failed to provide a stand-alone background check disclosure form as required under the FCRA.
Specifically, the complaint states that the “purpose of the stand-alone disclosure is to inform the consumer job applicant that a background report will be procured about him or her, not to provide the employer an opportunity to obtain the prospective employee’s signature on a form filled with confusing language and self-serving protections for the employer or waivers of the employee’s rights,” adding that “Congress included in the statutory scheme a series of due-process-like protections that impose strict procedural rules on ‘users of consumer reports,’ such as Uber.”
Joseph Cuccinello et. al. v. Uber, Inc. et. al., No.2:15-cv-06604 (D.N.J., Sep. 3, 2015).
On September 3rd, a federal district court granted Trans Union’s motion to stay in an action alleging that Trans Union violated the Fair Credit Reporting Act (FCRA) by not permitting consumers to challenge criminal and terrorist alerts on their credit reports. According to Trans Union, the case should be stayed while the Supreme Court rules on two FCRA class actions against Spokeo, Inc. and Tyson Foods, Inc., which will determine whether a plaintiff can allege FCRA violations without suffering actual harm.
The complaint alleges that the faulty programming and procedures that Trans Union LLC uses to match consumers to information in their databases (using “name only” logic to verify hits from records), the plaintiff and thousands of others have been subject to reports that cite erroneous and offensive information. In this case, the plaintiff alleges that the credit bureau inaccurately included criminal and terrorist alerts in credit reports and then furnished those reports as part of the background screening process to prospective employers and landlords without the consumers’ knowledge.
Counsel for Trans Union said that “it’s far from clear that the plaintiff has suffered any actual harm.”
Patel v. Trans Union LLC et al., No. 3:14-cv-00522 (N.D. Cal., Sep. 3, 2015)
On September 1st, a putative class action was filed against Universal Studios Orlando for alleged violations of the Fair Credit Reporting Act (FCRA) over its background check procedures.
According to the complaint, the plaintiff alleges that Universal failed to properly disclose that it would obtain the plaintiff’s credit report as part of the company’s background check procedures for prospective employees. Specifically, the complaint states that Universal “procured consumer reports on Plaintiff and other putative class members for employment purposes, without first making proper disclosures in the format required by the statute,” adding that the FCRA requires such disclosures to be in a “document solely consisting of Universal’s disclosure that it may obtain a consumer report on any person for employment purposes.”
Mendez v. Universal City Development Partners, Ltd., No.6:15-cv-0142
(M.D. Fla., Sep. 1, 2015).
Is your hiring process Ban the Box Compliant?
Lawsuits filed by the EEOC alleging discrimination, as well as class action lawsuits by individuals alleging violations of the FCRA relating to background checks, have resulted in significant settlements including a $3 million settlement announced recently involving a major supermarket chain, as well as a $1.75 million settlement, covering approximately 30,000 individuals, involving a popular restaurant chain.
At CARCO Group, we keep our clients out of harm’s way by knowing the law. Contact us today at 866-557-5984 or click here to discuss your hiring process.