EMPLOYMENT BACKGROUND CHECKS: BEST PRACTICES Presented by Peter Lowe, Esq. Brann & Isaacson 184 Main Street P.O. Box 3070 Lewiston, Maine Phone: (207)

Crapshoot: (noun) something that could produce a good or bad result

Background Checks Rule Out Bad actors Bad characters Liars Accidents waiting to happen Establish Good judgment Solid work ethic Loyalty Qualifications (training, education, certifications, job skills)

Criminal Background Checks: EEOC Guidance Federal law allows asking about criminal history, with certain limitations: Disparate impact Relevance to job Arrest records vs. Conviction records

Criminal Background Checks: EEOC Guidance Best Practices (per EEOC Guidelines): Eliminate policies/practices that exclude people from employment based on criminal record Develop a narrowly tailored written policy for screening applicants and employees for criminal conduct Limit inquiries to records for which the offense would be job-related for the position in question Keep information confidential

Criminal Background Checks: EEOC Guidance Factors employers must consider Nature and gravity of the offense/conduct Time that has passed since the offense Nature of the job held or sought Availability of less discriminatory alternatives Full EEOC Guidance (4/25/2012):

Peter’s Practical Pointers Identify disqualifying crimes Felonies (Class A – C) Theft, fraud, and other crimes of deceit Identify a time frame (5/10/15 years) Individualize your assessment Time elapsed Age of offender Seriousness of offense Frequency of offenses Rehabilitation Connection of offense to job

“Ban the Box” “Have you ever been convicted of a crime or pled guilty or no contest to a crime? If ‘yes,’ please provide the nature of the crime and the date of conviction.”

States with “Ban the Box” Laws for Private Employers Hawaii Illinois Massachusetts Minnesota New Jersey Oregon Rhode Island

President Obama’s Executive Order “Ban the Box” for all federal agencies ACLU calling on President to extend to all federal contractors

STATISTICS 92% of employers subject job candidates to criminal background checks 39% of all background checks had at least one serious flag 33% of American adults have been arrested by age 23 75% of arrestees are male African Americans account for 14% of the population, but 28% of all arrests Sources:

Claims Arising from Criminal Background Checks Disparate impact race discrimination (EEOC v. BMW, $1.6 million) Class action suits filed under FCRA (Feldstein v. Amazon.com LLC., Williams v. Amazon.com, Inc.) Protected class discrimination suits Ban the box claims

Negligent Hiring “An employer is liable if it hires, retains, or supervises an employee whom it either knows or should have known was not competent or fit for the job and whose incompetence or unfitness creates an unreasonable risk of harm to others because of the employee’s job-related duties.” (Najera v. Recana Solutions LLC (August 20, 2015)

Negligent Hiring: Recent Decisions Najera v. Recana Solutions LLC (August 20, 2015): Employee assaulted co-worker while on the job Victim sued Recana for failure to conduct a criminal background check Not negligent hiring Teri Reagan v. Dunaway Timber Co. (November 2011): Dunaway Timber Co. truck driver struck and killed Reagan while driving company truck Company had failed to spend $15 on background check for driver, who lied about his driving record on his application $7,000,000 verdict for plaintiffs

Social Media 40% of employers use social media to screen candidates, looking to: Evaluate professionalism and social conduct Evaluate fit for company culture Evaluate qualifications 51% of employers report finding content that caused them not to hire a candidate Sources: =12%2F31%2F2014; =12%2F31%2F2014http://

Applicants’ Mugshots Might be Just a Click Away

Rewards of Using Social Media Discovering: Poor judgment Lack of discretion/confidentiality Inappropriate conduct Safeguard reputation Due diligence

Risks of Using Social Media Prohibited inquiries: Race Religion Sexual orientation Age Disability Pregnancy Unreliability of Information

Peter’s Practical Pointers Don’t do it OR Use a non-decision maker (e.g., assistant) Provide screening criteria Limit screener / decision-maker communications

Maine’s New Social Media Law “Employee Social Media Privacy” law Makes it illegal to: Require or request that an employee or applicant disclose a social media password; Require an employee or applicant to disclose personal social media account information (subject to an exception for workplace investigations); Require an employee or applicant to add anyone, including the employer, to her list of contacts on a social media account; or Require or ask an employee or applicant to alter settings that affect a third party’s ability to view the contests of a social media account Does not apply to information that’s publicly available

Reference Checks Do them! Tips: Schedule a time Assure confidentiality Talk to managers, not co-workers Prepare target/individualized questions Get references from the references Listen for faint praise

Assessments Eight of the top ten US private employers now administer pre-hire tests in job applications In 2013, 57% of employers used pre-hire assessments Employers are using both skill-based and personality tests Source: The Wall Street Journal “Today’s Personality Tests Raise the Bar for Job Seekers,” Cornell HR Review “Personality Tests in Employment Selection: Use With Caution“

Using Assessments - Risks Legal: Supreme Court: Ricci v. DeStefano, 557 U.S. 557 (2009) ADA Applicant Faking