Recent employment law developments Use of credit checks and fact/length of unemployment? November 4 th, Senate passes ENDA 61-30

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2 Recent employment law developments Use of credit checks and fact/length of unemployment? November 4 th, Senate passes ENDA What will House do? EEOC Guidance on Criminal Background Checks (2012)

3 Title VII & race/national origin claims Not a prohibition on use of background check data But guidance on when/how use of CB data may constitute discrimination (disparate impact) Disparate treatment v. impact?

4 2 recent graduates (white/latino) apply for grounds crew position WM pled guilty to hacking school computer/changing grades Latino pled guilty to breaking/entering HS as prank WM hired & Latino rejected?

5 Overall contact w/ criminal justice system is increasing African-Americans & Hispanics arrested 2x-3x rate of general population 1:3; 1:6 and 1:17 Many criminal record databases incomplete/inaccurate Final dispositions (50% FBI data n/c; clerical errors; media archives, etc.)

6 General rule is that an arrest alone is neither proof nor evidence that criminal conduct has occurred Reliance merely upon applicant (or employee s) arrest is inconsistent with Guidelines But, inquiry into underlying conduct may support personnel action

7 Pepsi had policy of not hiring applicants who had been arrested pending prosecution, even when never convicted and not hiring at all applicants with convictions for certain minor offenses (2012) Pepsi agreed to settle by paying fine of A) $33,000 B) $333,000 C) $3.13 Million

8 Band Director Bob is accused of inappropriate sexual relationships with 2 female students in the band and as a result of this allegation he is arrested and charged with a State law sexual offense against a minor. While denying any physical contact with the students, Bob acknowledges that 1) he has engaged in sexually suggestive banter with these and other students, or 2) he has given both of these students rides home from school in his personal vehicle and unaccompanied by any other adult, or 3) he exchanges text messages with one of the students of an inappropriate, personal nature, or 4) All of the above?

9 REPORTING ALLEGATIONS OF AND CIRCUMSTANCES CONCERNING CRIMES AND CRIMINAL OFFENSES Employee Reporting Requirements Any employee of the County School District who is arrested, charged, indicted, bound over by or to a grand jury, convicted, exonerated, enters a plea, or who is nolle prosecuted for any crime or criminal offense in the State of Georgia or any other state in the United States, whether the crime or criminal offense is a felony or misdemeanor, shall immediately report in writing each and all of these events, occasions, or developments to the Superintendent of Schools or their appropriate designee as soon as reasonably practical, but no later than five (5) calendar days after its occurrence. This also includes any arrest or conviction outside of the United States.

10 Pepsi claimed they ve always had a neutral policy Neutral policy disproportionately & negatively effecting protected groups Employer defense to show policy is Job related Consistent w/ business necessity 2 possible ways to show job related=relationship to successful performance A-Research regarding linkage between convictions, future behaviors, traits or conduct with workplace ramifications

11 If employer is unable to show job-relatedness EEOC suggests 2-step targeted screen may be adequate Review nature of criminal offense Notice/consideration of additional information by applicant

12 Gravity of offense Harm (person/property) Elements of offense Fraud? Severity Misdemeanor v. felony Time How far back, age of applicant (no permanent exclusion) Nature of job Job description, actual & essential duties Environment & supervision level

13 Online application process for all positions that automatically terminates after applicant reports conviction If disparate impact results, EEOC likely to find violation & pursue Individual applies for school secretary position, but b/c check shows conviction 18 months prior for credit card fraud. School discuss circumstances w/ applicant & still rejects Okay?

14 Not necessarily required, but Notice to individual with opportunity to explain Problematic School District cases? Early screen w/o interactive process Late screen, but still no discussion/explanation

15 BMW screened former contractors based on unlimited (by date) criminal background check policy per certain offenses No individualized assessment Employees had been working at plant with former contractor Dollar General sued where 1 employee s job offer revoked over 6 year old conviction for possession of controlled substance (she had 4 years successful experience since) and another fired over erroneous conviction record

16 This Summer, 9 AG s (including Olens) write EEOC, criticizing expansion of EEOC s role and extension of Title VII to protect former criminals EEOC response states that Not illegal to conduct or use CB checks Applying disparate impact analysis to CB cases is not new Debates frequency, burden of individualized assessments

17 Not a prohibition on use of background checks But mere arrest But guidance on how to use & avoid T7 exposure (per EEOC s view) Job-relatedness, or plan B (see 2-step process w/ individual assessment) Avoid blanket screens early in process

18 Dan Murphy Lewis & Murphy LLP (770)