Recently in Background Checks Category
Monday kinda sucked for the EEOC.
The agency that made scrutiny of employee background checks a top priority under its current Strategic Enforcement Plan has been ordered by a federal court to turn over its own background check policy to an employer whom it is suing for a criminal background check policy that allegedly had a disparate impact on black employees.
*** smiles, grinds teeth, and inhales deeply ***
More after the jump...
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Across the country, many states and localities have enacted ban-the-box legislation. In a nutshell, ban the box means that employers cannot inquire about an applicant's criminal history until after the first job interview.
For example, Philadelphia has ban the box. The Commonwealth of Pennsylvania does not.
Still, Pennsylvania does have the Criminal History Record Information Act. But, indeed, a Pennsylvania federal court ruled on Wednesday that the Act and ban the box are two separate things:
CHRIA does not preclude an employer from revoking a conditional offer of employment based on a good faith belief than an applicant intentionally withheld material information on his employment application in violation of the employer's policies.
Just be sure that, if you are asking about criminal history on a job application, you don't operate in a ban-the-box town or city. And, even if you don't, remember that under the Act precludes employers from basing employment decisions on misdemeanors and summary convictions that do not render an applicant unsuitable for employment. And basing an employment decision on a mere arrest...fuggedaboudit.
Like my arrest for male prostitution doesn't make me unfit to be a lawyer.
(If only my blogging platform had a double strikethrough).
Halftime of the Eagles-Colts game. So, I only have 15 minutes to crank this one out. Here we go...
Two new bills in the House to watch.
1. The Litigation Oversight Act of 2014: This bill would amend Title VII of the Civil Rights Act of 1964 to require the EEOC Commissions to decide by "majority vote whether the Commission shall commence or intervene in litigation involving multiple plaintiffs, or an allegation of systemic discrimination or a pattern or practice of discrimination."
I give this somewhere between between a snowball's chance in hell and hell freezes over chance of passing.
2. The Certainty in Enforcement Act of 2014 would also amend Title VII to allow employers "to engage in an employment practice that is required by Federal, State, or local law, in an area such as, but not limited to, health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties." The intent here is to hamstring the EEOC from scrutinizing background checks of current and potential employees.
Like my daughter in a bumper car, this too shouldn't get far.
Come January 1, most NJ employers will no longer be able to ask about an applicant's criminal record during the initial employment application process.
Ban the box will be b-b-b-b-banned in the Garden State!
More on the new law after the jump...
Many cities in the Mid-Atlantic region (Philadelphia, Newark) have passed legislation that makes it illegal for employers to inquire about criminal history early on in the job application / interview process. The State of Delaware too has passed this so-called "ban the box" rule.
Last week, a New Jersey Senate Committee recommended passage of ban-the-box legislation in the Garden State.
Under the proposed NJ law, an employer may not inquire (orally or in writing) regarding an applicant's criminal record during the initial employment application process. Although after the initial application process has concluded, then this information would be fair game.
This is the second go-round for potential statewide passage of ban-the-box legislation in NJ. Governor Chris Christie remains open to passing ban-the-box.
Recently, several local lawyers and I participated in a labor and employment law roundtable for The Legal Intelligencer.
Actually, the table was rectangular. But, the coffee and muffins were free, so I didn't complain.
Well, not until I dropped my pants and mooned the employee-rights lawyers on the panel. Trust me, they had it coming.
Actually, they were quite polite and articulate. So, fortunately, they edited my butt-cheeks out.
I'm a real peach.
What were we talking about again?
Right, the roundtable. We debated several topics:
- background checks
- social media in the workplace
- employee leave issues
- dating in the workplace
my 28 inch blog pythons
Here is the transcript.
When the Fair Credit Reporting Act comes a knock knock knockin' on HR's door, who among you, will answer the call?
Fear not, kids. Cinch on your big boy/girl underpants! My colleague, Stacey Schor, in this post, has outlined a recent federal court decision that provides valuable guidance on how employers can comply with the strict requirements of FCRA, so that your hiring decisions are FCRA-bulletproofed.
This one goes out to all out FCRA
freaks fans. Holler if you hear me!
Second verse, same as the first.
Back in March, I reported here that a bill introduced in the U.S. House of Representatives, known as the Equal Employment for All Act, 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.
Yesterday, it was the Senate's turn to get in on the act; the Equal Employment for All Act, that is.
(See how I did that?)
Details on the Senate bill, what it would mean for employers, and its chances of passage after the jump...
Late last year, in this post, I highlighted the six issues that the United States Equal Employment Commission prioritized in its Strategic Enforcement Plan. Numero uno is eliminating barriers in recruitment and hiring.
Even before it released its Strategic Enforcement Plan, earlier in 2012, the EEOC telegraphed that it would closely scrutinize criminal background checks employers run on job applicants to determine whether they may disparately impact minorities.
But even before that, in 2009, the EEOC came out guns blazing, when it announced a lawsuit against Freeman (also known as the Freeman Companies), a nationwide convention, exhibition and corporate events marketing company. In it's lawsuit, the EEOC alleged that Freeman unlawfully "rejected job applicants based on their credit history and if they have had one or more of various types of criminal charges or convictions."
Well, on Friday, in this opinion, a Maryland federal court dismissed the EEOC's action against Freeman. While the court conceded that "some specific uses of criminal and credit background checks may be discriminatory and violate the provision of Title VII," the EEOC could not meet its burden of "supplying reliable expert testimony and statistical analysis that demonstrates disparate impact stemming from a specific employment practice."
And what, you may ask, did the court find so unreliable about the EEOC's expert analysis in this case? Here are a few choice selections from the Court's opinion:
- The judge noted what "appear to be such a plethora of errors and analytical fallacies" in an EEOC expert's conclusions to render them "completely unreliable, and insufficient to support a finding of disparate impact."
- He then underscored that the "mind-boggling number of errors" contained in the EEOC expert's database "could alone render his disparate impact conclusions worthless."
- To add insult to injury, the judge piled on the EEOC expert by noting that he further "managed to introduce fresh errors into his new analysis, including many additional duplicates, material coding errors, and more double-counting."
- And when the EEOC tried to introduce another report from a second corroborating expert, the judge shot that report down as "likewise unreliable and inadmissible."
- Finally, the judge turned his attention away from the EEOC's experts, and blasted the EEOC itself for trying to "make a mockery of procedural standards."
But where the EEOC really fell down here was with its failure to isolate a specific employment practice that allegedly caused a disparate impact. That is, Freeman had a variety of background screens in effect. Instead of tackling them individually, the EEOC lumped them all together and claimed that, collectively, they had a disparate impact on minorities. According to the court, what the EEOC should have done is "demonstrate that each particular challenged employment practice causes a disparate impact," unless doing so proves unfeasible, which was not the case here.
The court concluded its opinion by offering a stern warning to the EEOC, which could carry over to other similar actions now pending against other employers:
By bringing actions of this nature, the EEOC has placed many employers in the "Hobson's choice" of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.
Let's call a spade a spade: this is a major setback for the EEOC. However, employers must recognize that facially neutral background checks may have a disparate impact on certain protected classes. While the EEOC's "individualized assessment" strikes me as impracticable, I do agree with the EEOC that employers are well served to consider the nature of the position to be filled, as well as whether a background check exclusion is actually job-related and consistent with the needs of the business. Doing so, helps strike a reasonable balance to protect the business, while not excluding viable candidates.
Disclaimer: I am a pro bono mediator for the EEOC.
Last week, the U.S. House of Representatives passed the Cyber Intelligence Sharing and Protection Act, better known as CISPA. CISPA provides for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.
However, the majority vote was not without a speed bump, according to this report from Josh Wolford at WebProNews:
Colorado Democrat Ed Perlmutter attempted to tack on a provision to CISPA that would make it illegal for employers to require prospective employees to hand over their social media passwords as a condition of acquiring or keeping a job.
Perlmutter's amendment was voted down 224-189.
Sara Gates of The Huffington Post reports here that CISPA sponsor Rep. Mike Rogers called Perlmutter's proposal an attempt to kill the bill, and suggested that Perlmutter propose the amendment as standalone legislation.
Currently pending in the House is the Social Networking Online Protection Act (SNOPA). SNOPA would effectively accomplish what Perlmutter attempted to do by amending CISPA. Although six states have passed laws banning employer requests for social media passwords of job applicants, and several others have legislation pending, Congress has done little to push SNOPA along. Indeed, the same version of SNOPA was introduced in 2012, but sat dormant.
Yesterday, I discussed some pending federal legislation that would expand the FMLA to cover part-time employees. Now, I hear that another bill introduced in the U.S. House of Representatives, known as the Equal Employment for All Act, 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.
A copy of the Act and more details on employer credit checks after the jump...
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*Do I need a disclaimer? Do I?
What a year for The Employer Handbook in 2012! I'm most pleased that, in our second year of existence, readership more than doubled. Although, sadly, the one 2011 reader I had from Papua New Guinea never returned in 2012. I hope she is ok. Yeah, she's ok.
So, what did my readers enjoy most in 2012? Well, apparently, y'all like Polka music. Why else would this be the most-clicked item on The Employer Handbook? What a
strange cultured bunch!
As for actual HR/legal-related content, here were the top five based on total page views:
- Legislation introduced to expand FMLA coverage in PA. I originally posted this in June 2011 and the bill never passed. Move on, people. Move on.
- Facebook pics of employee boozing at a festival ruin her FMLA claim. This doesn't surprise me at all. I was at SHRM National in '12. I saw what happens when you provide HR "professionals" with access to karaoke and half-priced well drinks. Don't worry, I won't tell. ** Cancels Instagram account **
- Ethics charges for two lawyers over Facebook friending a litigant. I'm not so sure that the two lawyers are pleased about this. (Note: I love you. All of you. Keep clicking). Nonetheless, my theory that misery loves company in the legal community is confirmed.
- 4 new employment-law bills now pending in Congress. None passed. Yeah, I'm shocked too.
- Pepsi and Criminal Background Checks: Beyond the Buzz. This one was a guest post from Janette Levey Frisch.
I tried combining chloroform with Pepsi Kona to keep Janette all to myself; however,Janette now blogs at The Emplawyerologist. Make sure to check it out.
So, other than old PA legislation, soda, booze, and farting (Give that one time to breathe, I expect big things), what would you like to hear about in 2013? Let me know in the comments below and I will make all of your dreams come true.
[Editor's Note: The original theme for this post was the "Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition." I had this bright idea to begin by cutting and pasting the lyrics to Guns N' Roses' "My Michelle," and, let's just say I bailed after the first line.]
So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.
Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine -- the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival -- while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on "Growing Pains," could play the company decision-maker. We'll call it "FML Aye Yai Yai!"
[Editor's Note: I'm throwing Thicke a bone here. Don't you think? According to IMDB.com, he just finished production on "Fugget About It", in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]
So that's the idea. More great posts and imaginative casting decisions, after the jump...
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Well, that didn't take long.
Late last month, I reported on a bill that had been introduced in the U.S. House of Representatives, known as the Social Networking Online Protection Act (SNOPA), that would prohibit employers, schools, and universities from requiring someone to provide a username, password or other access to online content.
Now, it's the U.S. Senate's turn to get in on the act with its own password bill. Plus, after the jump, I'll have an update on similar legislation winding its way to Governor Christie in New Jersey...