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Are FELONS becoming a "protected" class?
This is a question that's been discussed in many venues over the past year. More than any other topic, the 2012 EEOC guidance has been the most talked about issue throughout the background screening world. The "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions" was issued last April and effects more than just Consumer Reporting Agencies. With the Society for Human Resource Management (SHRM) stating that 87% of all employers use background checks as part of their hiring process, this guidance concerns the majority of employers, large and small.
What's the answer to the protected class question above? The good news is that felons are not a protected class. The EEOC points out that there are job positions in the workforce that can be filled by those with a criminal record and they are working to stop companies from discriminating through either disparate impact or disparate treatment. In addition, the EEOC provides steps in their guidance to protect your company from any claims of disparate impact or disparate treatment.
- An example of disparate impact is where your company has a blanket statement that says "anyone with a criminal conviction is denied employment". This sounds quite fair because anyone with a criminal conviction is treated the same. But, disparate impact shows where the rise in the number of Americans who have had contact with the criminal justice system has led to higher arrest and incarceration rates for Hispanic and African-American males. In turn, this is leading to a disproportionate rate of denied employment.
- An example of disparate treatment is where two applicants have a similar conviction or situation but the treatment of that information is different based on race or ethnicity.
Should my company or department change our background screening process? Below, we've offered some simple steps to ensure that you continue to benefit from the valuable tool of pre-employment background checks:
1. Eliminate policies or practices that broadly exclude people from all jobs based on any type of conviction. Basically, don't use a blanket statement.
2. Know your job requirements and tailor background checks accordingly. Develop narrowly tailored written policy for screening applicants. Identify your essential job requirements and determine what specific offenses demonstrate an unfitness for that particular job. As always, record the justification for your policy for each job. Below are examples of specific jobs with specific requirements:
- Example 1: If hiring cab drivers, no DUI convictions
- Example 2: If hiring security guards, no shoplifting convictions
- Example 3: If hiring bank tellers, no embezzlement convictions
3. If you find a past conviction or arrest, review the following:
- The nature of the crime
- The time elapsed since the crime
- The nature of the job
- Provide an opportunity for an individualized assessment
4. Always follow the Adverse Action process when denying employment based in whole, or in part, on something found in the background check. Provide the Adverse Action letter along with a copy of A Summary of Your Rights Under the Fair Credit Reporting Act. You can access these documents here:
http://www.in-foquest.com/service-forms/
In closing, InfoQuest would like to thank the law firm of NexsenPruet for their expert advice regarding this topic. A special Thank You to Michael P. Scott, Associate, for his willingness to offer details on the EEOC guidance. For legal questions, please contact:
Michael P. Scott, Associate
mscott@nexsenpruet.com
P 843.579.7806
NEW IN 2013
*January 1, 2013: Recent changes to the Fair Credit Reporting Act have shifted enforcement of the law from the FTC to the CFPB. New forms must be used immediately.
*March 8, 2013: The US Dept. of Labor released revised model Family and Medical Leave Act (FMLA) forms to administer federal FMLA leave and a new poster. New forms and poster must be used and displayed immediately.
*March 8, 2013: The USCIS released a revised Employment Eligibility Verification Form I-9. Employers can begin using immediately but have until May 7, 2013 to remove older version I-9.
Contact InfoQuest for newest forms
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