FINAL Employers Guide to Best Practices 2013 (1)
- 1. 1401 New York Avenue, NW Suite 400 Washington, DC 20005-2124 Tel: 202/662-8600 Employment Discrimination Access Campaign Hotline: 888/324-7578 Fax: 202/783-0875 www.lawyerscommittee.org Visit the EEOC’s Web site at: http://www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm Visit the FTC’s Web site at: http://www.ftc.gov/bcp/edu/pubs/business/credit/bus08.shtm Visit the Bureau of Consumer Protection at: http://business.ftc.gov/documents/bus08-using-consumer-reports- what-employers-need-know Visit the Lawyers’ Committee Web site: http://www.lawyerscommittee.org For a more comprehensive description of Best Practices follow the link: http://www.lawyerscommittee.org/projects/ employment_discrimination/publications?id=0037 ©Copyright 2013 Lawyers Committee for Civil Rights Under Law How to Safely Limit Use of Criminal Records in Hiring
- 2. A 2012 poll of the Society of Human Resource Management shows that approximately 92 percent use criminal histories in screening job applicants. While employers are permitted, under certain circumstances, to rely on the information obtained about an applicant or employee from a criminal history and/or consumer report in making employment decisions, employers must take certain precautions to ensure they do not violate federal laws. In 2012 the EEOC released an updated enforcement guidance on the use of criminal background checks in hiring. It cited a large and increasing disparity in the percentage of minority workers who have criminal records compared to the percentage of whiteworkers. Considering that African Americans and Latinos are more likely to be arrested than whites, more likely to be charged once arrested, and more likely to be convicted and incarcerated when charged, it is important for employers to be aware of this updated guidance to avoid Title VII liability. This brochure serves to advise employers of their legal responsibilities when obtaining criminal and consumer histories for job applicants and employees, potential legal consequences under federal law for failing to comply with these legal responsibilities, and best practices in implementing the lawful usage of background checks when making employment decisions. 1 The EEOC’ position is based on statistics demonstrating that certain minority groups are arrested and denied credit advantages at a disproportionately higher rate than non-minorities. Therefore, broad policies that deny all persons employment because of a negative credit history or criminal background may lead to “disparate impact” lawsuits under Title VII. “Disparate impact” means that a policy or practice that appears to be neutral adversely affects minority applicants/employees. Employers may avoid liability only when the contested policy or practice is both job related and consistent with business necessity and when no less discriminatory alternative is available to achieve the same intended objective. Although the EEOC has focused on the racial impact of background checks, employers face the same liability if their policies have a disparate impact on employees or applicants because of gender or other protected status. Employers may also face liability under state anti-discrimination statutes. Be consistent by obtaining the same type of information from background checks for all applicants/employees; Comply with all of the procedural disclosure, notice and consent requirements in the FCRA and any applicable state consumer reporting statute; Ensure that any adverse action taken as a result of information obtained through a background check is necessary for the employer’s business. Any employer that is unsure whether he or she can lawfully take an adverse action based on information obtained through a background check should consult legal counsel before making a final decision. Employers can also face liability under state laws restricting the use of criminal record histories. An employer who spreads damaging information about an applicant or employee that turns out to be inaccurate, can face liability for defamation as well. Before acting on any background information, employers should make sure the information is reliable and that no state law prohibits its use. 6 SUMMARY
- 3. 8. CONFIRM ALL INFORMATION FROM ONLINE DATABASES WITH ORIGINAL SOURCE Online databases are not always accurate or up to date. All information from such databases should be confirmed with the original source. 9. PROVIDE APPLICANT THE OPPORTUNITY TO CHALLENGE THE CRA’S REPORT Whether or not required to do so by FCRA, employers should provide applicants with a prompt and convenient method of challenging information in the CRA’s report. 10. ALL CHARGES RELATED TO A SINGLE INCIDENT SHOULD BE REPORTED AS A SINGLE ENTRY Reporting information relating to a single incident in different sections of a report can create the impression that multiple incidents took place. Use a CRA that reports all information related to a single incident in a single entry. 11. CONSIDER EVIDENCE OF REHABILITATION People change over time. Many people with criminal convictions change their lives and become good citizens who can be good employees. Applicants with relevant convictions recent enough to be of concern should not automatically be rejected. Instead, he or she should be given the opportunity to present evidence of rehabilitation which the employer should carefully consider before making a decision. 12. MINIMIZE CONFLICT OF INTEREST BY DECISION MAKERS Employees making hiring decisions regarding applicants with criminal records are in a difficult situation. If the company hires an applicant with a record who later commits another offense, the employee who hired them may be blamed. Hiring decisions should be made by an employee (or employees) who are in the best position to make an objective decision. 5 ©Copyright 2010 Lawyers Committee for Civil Rights Under Law Employers that rely on “consumer reporting agencies” (often referred to as CRAs) to conduct background checks by obtaining what the law refers to as “consumer reports” must comply with the Fair Credit Reporting Act (FCRA). Other relevant federal statutes include Title VII of the Civil Rights Act, which prohibits employer discrimination based on race, gender, religion, or national origin. FCRA requires employers to ensure that applicants/employees: (1) know that consumer reports are being obtained for employment purposes; (2) agree to disclose these reports; (3) receive notifications when an employer intends to take action based on information gathered from the consumer reports; and (4) are given an opportunity to correct any errors in the information reported. The Equal Employment Opportunity Commission (EEOC), which is the federal agency responsible for enforcement of civil rights statutes like Title VII, has issued guidelines that employers should follow when taking an adverse action based on the criminal history of an applicant or employee. The commission’s guidelines reflect the reality that if incarceration rates remain unchanged, about one in 17 white men are expected to serve time in prison during their lifetime; compared with one in six Hispanic men and one in three African American men. According to these 2012 guidelines, the employer must consider: The nature and gravity of the offense or offenses of which the applicant/ employee was convicted; The time that has passed since the conviction or completion of the criminal sentence; and The nature of the job held or sought. 2
- 4. Possible legal pitfalls exist under federal law if an employer misuses or improperly relies on the results of a background check. Employers may face additional liabilities under state laws and should consult applicable state laws. FCRA Employers that fail to comply with the FCRA requirements described above may be legally responsible for any harm caused to an employee or applicant. Employers may be required to pay actual damages, punitive damages, costs and attorneys’ fees as a result of such non-compliance. In addition, employers may be subject to certain financial penalties imposed by the Federal Trade Commission. State laws may impose additional penalties. Title VII of the Civil Rights Act The EEOC believes that employers that have sweeping policies prohibiting the hiring of individuals based on their criminal history may negatively impact minority populations. See Best Practices on the following page for recommendations on how to avoid Title VII liability. The employer should be able to demonstrate the connection between the nature of the crime and the employee’s or applicant’s position. The EEOC has also issued guidance that arrest records alone cannot be used to exclude individuals from employment. 3 1. CONSIDER ONLY CONVICTIONS AND PENDING PROSECUTIONS The fact that someone has been charged with a crime should not disqualify him/her for a job if s/he was not convicted. If a person is being prosecuted for an offense that is relevant to a job for which s/he has applied, an employer may consider it. 2. CONSIDER ONLY CONVICTIONS THAT ARE RELEVANT TO THE JOB IN QUESTION A person who has committed an illegal act in the past may be more likely than the average person to commit a similar act in the future, but rarely is s/he more likely to commit other offenses. For example, a person who has been convicted of DUI may put the employer and the public at risk in a job that involves driving, but not in other jobs. 3. CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK The risk that someone who has been convicted of a crime will commit another offense decreases over time. Employers should consider the available evidence on recidivism rates before rejecting an applicant who has been living in the community without getting into trouble again for some time. 4. DO NOT ASK ABOUT CRIMINAL RECORDS ON APPLICATION FORMS Delaying learning about an applicant’s criminal record until the interview or later enables the employer to make hiring decisions based on work experience and qualifications, rather than stereotypes. 5. USE A QUALIFIED AND RESPONSIVE CRA TO CONDUCT RECORD CHECKS All consumer reporting agencies are not equal. Employers should consider the quality of CRAs’ procedures and results and not decide which one to use based solely upon cost. This includes CRAs that report only convictions that are relevant and recent enough to pose risk for the job in question. These determinations should be provided to the CRA with instruction to report only convictions that meet these criteria. 7. ASK CRA TO REPORT CONVICTIONS ONLY WHEN FULL NAME AND ONE OTHER IDENTIFIER MATCH In a country of over 300 million people, many people have the same first and last name. A conviction should only be reported to an employer when the full name (including middle name where available) and at least one other identifier match. 4 Best Practices