EEOC Criminal History Guidance and “Best Practice Standards” Management Perspective Pamela Q. Devata, Seyfarth Shaw LLP

Multiple areas of Risk Fair Credit Reporting Act EEOC Criminal History Guidance/ ligitation EEOC v. BMW EEOC v. Dollar General Ban the Box Laws Negligent Hiring Concerns ©2015 Seyfarth Shaw LLP 2 |

©2015 Seyfarth Shaw LLP 3 | Employers/Management Perspective Initial reactions to Guidance Most employers have modified policies and practices Individualized assessment is toughest issue Negligent Hiring concern by employers

Comparison of Guidance and Best Practices Document ©2015 Seyfarth Shaw LLP 4 | EEOC GuidanceBest Practices DocumentEffect on Employers/Other Arrests are per se disparate impactConsider only pending/convictionsState restrictions (IL, NY, CA) Likely disparate impact unless job relatedConsider only job related convictionsLegal defense Time since offense as a factor Consider recent enough for significant risk What does “significant risk” mean Removed criminal history question from application Remove criminal history from application Can still ask the question. Mitigates risk Targeted ScreenCRA reporting only relevant and recentTime saving mechanism Individualized AssessmentConsider Evidence of RehabilitationNY Article 23-A/Consider timing of request for info

Best Practices for Employers Revise policies and procedures in accordance with law and EEOC Guidance Consider removing criminal history question from application After interview or after conditional offer Still want falsification argument Consider providing opportunity to respond to individualized assessment at time of criminal question Ensure staffing companies are following guidance Review descriptions/convictions that are concerning and make a record of why Consider asking an outside expert to assist ©2015 Seyfarth Shaw LLP 5 |

©2015 Seyfarth Shaw LLP 6 | For More Information/Questions: Pamela Q. Devata SEYFARTH SHAW LLP 131 South Dearborn Street, Suite 2400 Chicago, Illinois (312)