How to Keep the EEOC Happy and Avoid Hiring an Ax Murderer: Best Practices for Background Checks in the Social Media Age Presented by: Gregg M. Lemley and Burton D. Garland, Jr.

Do-It-Yourself Background Checks

Social Media and Hiring Why look at social media during the hiring process? Obtain information Cultural fit Potential business risk

Why View Applicants’ Social Networks? Discrimination Disclosure Lies Disparagement Style and ability Licenses and certifications Personality

Information Discovered – Good, Bad or Both? Race Gender Family Political Views Controversial Opinions Religion Children National Origin Sexual Orientation Age

Drug Use Alcohol Abuse Alcoholism Arrest Information Criminal History Marital Status Prior Lawsuits Prior Charges Bigotry Worker’s Comp Claims Periods of unemployment Disclosure of prior employer’s secrets Information Discovered – Good, Bad or Both?

Whistleblowing Employer bashing Employee bad mouthing Sexual content Harassment of co- workers Gender identity Negativity Defamation of employers, clients, or third parties Image Information Discovered – Good, Bad or Both?

Tobacco use Other “lawful out of work activities” Records of disabilities Health issues Psychiatric issues Medical history Medications Information Discovered – Good, Bad or Both?

Do Employers Really Want to Utilize This Information?

Risks in Using Social Media in Hiring Discrimination avoidance tip: Insulate decision maker – have different individual look at the sites and gather specific, relevant information Only look for specific things, e.g.: Inappropriate photos Ties to a competitor Opposition to your business

Recommendations 1.Make informed decision on use of internet searches for applicants/employees

Recommendations 2.Include release/authorization in applications

Recommendations 3.Check terms and conditions of website being accessed

Recommendations 4.Retain information used for hire/no hire decision

Recommendations 5.Focus on job-relatedness of information

Recommendations 6.Evaluate use of third party to conduct searches

Recommendations Cons include Lack of control over search Inability to obtain some information you may want Difficulty in defining what would be pass or fail Fair Credit Reporting Act obligations

Recommendations 7.Consistently apply search

Recommendations 8.Time of search – Pre- Offer/Post Offer

Recommendations Cons of Post-Offer include Focusing the applicant on the reason for the decision and potentially leading increased likelihood of litigation due to yanking of job offer

Legislation and Threatened Litigation over Requiring Passwords

Criminal Background Checks

EEOC Issues Guidance Reliance on arrest and conviction records may have disparate impact on individuals because of race or national origin

EEOC EEOC investigating over 100 discrimination claims based on criminal background checks Pepsi paid $3.13 million to settle EEOC charges based on use of criminal background information to screen out applicants

EEOC EEOC v. Kaplan Higher Education, Inc. (filed Dec. 2010) Kaplan’s rejection of job candidates based on credit histories had disparate impact on class of African- American applicants

EEOC EEOC v. Freeman (filed Sept. 2009) Company’s use of credit history and criminal justice information in hiring process had disparate impact on African- Americans, Hispanics, and males

EEOC Gets a Black Eye EEOC v. Peoplemark, Inc. (filed Sept. 2008) Alleged blanket prohibition on hiring applicants with criminal records EEOC alleged disparate impact on racial minorities Class discrimination

EEOC Gets a Black Eye EEOC v. Peoplemark, Inc. (filed Sept. 2008) Three year investigation = 18,000 pages of documents Court dismissed case and sanctioned EEOC EEOC continued to litigate after learning Company did not have or apply blanket policy and hired multiple employees with convictions Sanctioned $750,000 in attorney’s fees

Private Cause of Action Hudson v. First Transit, Inc. (filed July 2010) Seeks certification of nationwide class of African-Americans and Latinos whom plaintiff alleges company refused to hire or terminated because of actual or presumed criminal record Class size potentially numbers 15,000 individuals

Private Cause of Action EI v. Southeastern Pennsylvania Transportation Authority (Third Cir. 2007) Paratransit driver challenged policy of excluding everyone convicted of violent crime African American convicted for second-degree murder (gang fight) 40 years earlier Summary judgment affirmed for employer Nature of position required utmost care Unsupervised access to vulnerable adults

EEOC Issues Guidance Enforcement Guidance issued on April 25, 2012 Took effect immediately

The EEOC’s Initial Burden Identifying the policy or practice that causes the disparate impact

Disparate Impact Claims EEOC must: 1.Identify policy or practice; and 2.Confirm substantial disparate impact Expect EEOC requests for voluminous applicant and hiring data (to prove disparate impact in your organization)

1.Identify Policy or Practice Causing the Disparate Impact Text of policy or practice How policy or practice is implemented

2. Confirm Disparate Impact EEOC – national data supports finding that criminal record exclusions have disparate impact based on race and national origin Employer – present local or regional data and its own applicant data to demonstrate policy or practice did not cause a disparate impact

2. Confirm Disparate Impact Employers’ evidence of a racially balanced workforce will not be enough to disprove Commission “closely” considers employer’s reputation in the community

Arrests An arrest, by itself, is never job-related / consistent with business necessity Does not establish criminal conduct occurred Presumed innocent until proven guilty Many arrests do not result in convictions

Arrests May consider conduct if have separate proof makes individual unfit for position

The Employer’s Burden The Business Necessity Defense

Disparate Impact Claims – Employer’s Burden Once EEOC establishes disparate impact, burden shifts to employer to prove: Policy /practice is job related and consistent with business necessity

Establishing “Business Necessity” Defense 2 ways for employers to show “job-related and consistent with business necessity” Validation using Uniform Guidelines on Employee Selection Procedures Targeted screening process

1.Validation Validate criminal conduct exclusion using Uniform Guidelines on Employee Selection Procedures Complicated and costly Includes use of statistical models Guidance acknowledges challenges

2.Targeted Screening Process Considers: Nature and gravity of offense or conduct; Time since conviction; and Nature of job held or sought.

Factor #1 – Nature and Gravity of Offense Assessed with reference to harm caused Legal elements may be instructive Felony theft involves deception, threat, or intimidation Misdemeanors treated less severely

Factor #2 – Time Passed Since Offense How much the risk of recidivism declines EEOC studies (6-15 years?) No consensus on age of relevant criminal records

Factor #2 – Time Passed Since Offense EEOC’s example: 55-year old African American paratransit driver terminated after employer learned of conviction for second- degree murder 40 years earlier

Factor #3 – Nature of Job Held or Sought Criminal conviction should link to essential functions of position in question

Factor #3 – Nature of Job Held or Sought Job title – starting place Nature of job duties Circumstances in which job is performed Job’s environment

Individualized Assessment EEOC Guidance: For individuals “screened out” by targeted screening process, policy should provide “an opportunity for an individualized assessment”

Individualized Assessment EEOC stops short of actually requiring employers to conduct individualized assessments If screening process does not include individualized assessments, more likely to violate Title VII EEOC will request individualized assessment when conducting investigations

Individualized Assessment Notice to individual Opportunity to demonstrate exclusion should not be applied Whether additional information provided Warrants an exception to the exclusion Shows policy as applied is not job-related and consistent with business necessity.

Individualized Assessment – Factors Not correctly identified in criminal record or record is otherwise inaccurate Facts or circumstances surrounding offense or conduct Number of offenses for which individual was convicted

Individualized Assessment – Factors Length and consistency of employment history before and after offense or conduct Rehabilitation efforts Employment or character references and any other information regarding fitness Whether individual is bonded under a federal, state, or local bonding program

Individualized Assessment If individual does not respond... employer may make decision without the information Example – Employer placing employee on unpaid administrative leave pending investigation Implication that unpaid leaves are o.k.?

The EEOC’s Burden (Again) Less Discriminatory Practice

Disparate Impact Claims – EEOC’s Burden (Again) If employer successfully demonstrates policy or practice is job-related and consistent with business necessity EEOC – there is less discriminatory “alternative employment practice” that serves employer’s goals, but employer refused to adopt

Miscellaneous

Employment Applications EEOC “recommends” that employers not ask about convictions on job applications The only time the Guidance uses the term “recommends” But see state/ municipal laws “Ban the Box” FCRA

Guidance and Federal Law Compliance with federal laws and regulations is defense to charge of discrimination E.g., federal government employees, federal security clearances

Guidance and State Law Compliance with state and local laws does not shield employers from violating Title VII All 50 states and D.C. require criminal background checks for certain occupations, such as nurses, elder caregivers, daycare providers, and school teachers Counties, cities, and other municipalities increasingly require background checks

Guidance and Client Requirements Compliance with client requirements unlikely to shield employers from violating Title VII Do your own assessment!

EEOC’s Employer Best Practices

Eliminate automatic exclusions based on any criminal record (or based on any felony)

EEOC’s Employer Best Practices Develop narrowly tailored written policy Identify essential job requirements Determine the specific offenses that may demonstrate unfitness for performing such jobs Determine duration of exclusions for criminal conduct Record justification for the policy Note and keep record of consultations and research considered in crafting the policy and procedures

Questions about Criminal Records When asking questions about criminal records, limit inquiries to records for which exclusion would be job-related for the position in question and consistent with business necessity. EEOC’s Employer Best Practices

Confidentiality Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended. EEOC’s Employer Best Practices

Training Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination, and about your background check policy. EEOC’s Employer Best Practices

Takeaways Revise background check practices/policies to include targeted screening process Consideration of 3 factors Individualized assessment Revisit “red light, green light” criminal background assessments “Red light” likely over “Green light” – still some problems here

Takeaways Client requirements (e.g., “no employees with felonies”) and state law requirements (e.g., for nurses, teachers, etc.) will not shield employers Conviction questions on employment application do not need to be removed – yet

How to Keep the EEOC Happy and Avoid Hiring an Ax Murderer: Best Practices for Background Checks in the Social Media Age Presented by: Gregg M. Lemley and Burton D. Garland, Jr.