Continuing: Trends, Risks in Criminal Background Checks

EEOC Strategic Plan for Fiscal Years 2013-2016 will focus on eliminating barriers in hiring/recruitment including review of blanket review of criminal background checks and credit history. 

 

Should employers still conduct criminal background and credit checks?

In what situations are such backgroundchecks ill advised?

How should employers conduct such checks?

 

Question: How will trucking companies avoid EEOC complaint that DAC criminal background checks don’t have disparate impact on certain groups?

 

The following was reported Lana Batts and Billie Lee in Transport Topics a few weeks ago. I have condensed the article into the salient comments.

 

We have alerting carriers to ever-changing legal trends in the background-screening industry.  Specifically, we have been notifying them of the changes brought about by recent Federal Trade Commission Fines Levied for Violations of the Fair Credit Reporting Act, a class-action lawsuit that has been settled covering the same issues.

The issues fall into two categories:

·        The pitfalls in using commercial databases exclusively for criminal history record checks.

 

·        The need to allow potential employees to rectify incorrect information and explain why a past conviction is not relevant to the current job offering.

By their very nature, database searches represent a single snapshot in time.  “National” databases information is a guarantee of receiving only partial information – at best – and therein lies the danger of errors that may result in costly civil litigation.

           

The question that courts and the EEOC are beginning to ask is, “How can one rely on a product with known significant deficiencies such as the ‘national’ database standing alone and still pretend be in compliance with FCRA?

The EEOC’s new guidelines are all about explanation, or individual assessment –i.e., allowing the candidate to explain the circumstances in the record and what has happened since the conviction.

 

The EEOC provides guidance regarding the factors that should be considered and requires and individual assessment of these factors before a final hiring decision is made.  As with the FCRA process, there are clear steps in providing notice and gathering required information.

 

 

Also, I want to remind you about the Kaplan case from the federal Ohio Northern District, which addressed the admissibility of evidence necessary in a disparate impact discrimination claim when an employer uses criminal or credit background checks (such as trucking companies using DAC). I will had a  fairly detailed analysis of the case on February 14 on this blog site.

 

As always, if there is anything I can do to assist you in Louisiana, particularly North Louisiana, or in Northeast Texas, feel free to call day or night.

 

Mark Perkins

Perkins & Associates, LLC

318-222-2426