Background checks

Ban the Box and Local Ordinances- What Employers Should Know

Lately, passing ordinances to Ban the Box has become a trend of some states and local governments.   Ban the Box has also become a controversy as these ordinances differ from one state or local government to the other, stretching and pulling the definition in various directions.   Ban the Box is a nationwide effort to remove felony conviction inquiry (“the box”) from employer job applications.  The goal of deferring inquiries of criminal history, or “banning the box”, is to allow qualified candidates with criminal history records to compete for employment more fairly. Twenty-four municipalities have approved ordinances and policies to protect employment rights for potential employees with criminal history records.  Certain municipalities, such as Kalamazoo, MI, have a minimal policy in place where the initial employment applications do not include “the box”.  Others, for example Boston, MA, do much more than “ban the box”.  Boston’s policy states that an applicant should be submitted to a background check only if there is a “good faith determination that the relevant position is of such sensitivity that it matters.”

Recently, officials in Richmond, CA have approved what is called the nation’s most comprehensive “ban the box” ordinance.  It not only removes “the box” from the initial employment application, but also does not require applicants to share their criminal history records at any point during the hiring process or after.  Jovanka Beckles, a councilwoman who introduced the ordinance, stated that the hope is to reduce unemployment and recidivism in Richmond and to “give these people who want to, a chance to make a change”.

To read more about the ordinance approved in Richmond, CA, please follow the link: http://www.huffingtonpost.com/2013/08/05/ban-the-box-california_n_3708947.html?utm_hp_ref=business

To see a city by city comparison on “ban the box” policies by The National Employment Law Project, visit

http://nelp.3cdn.net/495bf1d813cadb030d_qxm6b9zbt.pdf

Federal District Court Rules that Freeman Co. Did Not Discriminate by Using Criminal Background Checks to Screening Employment Applicants

A lawsuit by Equal Employment Opportunity Commission (EEOC) against a Dallas event-marketing company Freeman Co. was dismissed on August 9th.  EEOC claimed that Freeman Co. was discriminating against black applicants by using criminal-background checks or credit checks in hiring.  However, U.S. District Judge Roger W. Titus denied EEOC’s motion in his decision stating that EEOC did not provide any evidence of discrimination: “Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim, based upon criminal history and credit checks.” Moreover, Judge Titus ruled that by filing actions of this nature, EEOC has placed many employers in the situation where they need to make a choice between ignoring credit background and criminal history, and as a result exposing themselves to potential liability for their employees’ criminal and fraudulent acts, or “incurring wrath of the EEOC for having utilized information deemed fundamental by most employers”.

This lawsuit filed in 2009, was one of the first filed by EEOC in its effort to regulate the use of background checks.  Recently, EEOC filed two other suits of similar nature accusing Dollar General Corp. and a U.S. unit of BMW of discriminating against black applicants by using criminal histories checks.  Both of these cases are pending.

According to a 2012 survey by the Society for Human Resource Management, approximately 87% of employers use criminal background checks during hiring.  Interestingly enough, EEOC itself is among these employers based on Judge Titus’s opinion.

EEOC and civil-rights activist believe that background checks can be discriminatory since blacks have higher rates of being convicted in crimes than whites.  In 2012, EEOC issued guidance that urges employers to consider the crime and its relation to an applicant’s potential job as well as the amount of time that has passed since the conviction.

Employers should be pleased with Judge Titus’ decision, which applies a common sense approach to this important matter problem involving employment hiring decisions.  The EEOC, on the other hand, is no doubt disappointed.  Time will tell whether the decision will influence agency’s efforts on background checks.

See the following links for related information.

http://www.workplaceclassaction.com/files/2013/08/2013-08-09-Memorandum-Opinion-c.pdf

http://www.eeoc.gov/eeoc/newsroom/release/6-11-13.cfm

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

Background Checks for Employment Fuel Race Complaints

A heated recent debate over whether the use of criminal background checks in the hiring process amounts to the discrimination against minorities has been fueled by recent lawsuits filed by the Equal Employment Opportunity Commission.  On June 11, 2013, two large employers, discount retailer Dollar General Corp. and a U.S. unit of German auto maker BMW AG, were accused by the EEOC of using improperly criminal background checks in hiring.  In complaints filed in federal courts in South Carolina and Illinois, the EEOC stated that both employers should have reviewed each applicant, but instead they generally barred potential employees based on the criminal background checks.  According to the commission, their hiring policies had the discriminating effect against African American applicants. These suits accentuate government scrutiny of widely used criminal and credit background checks for screening job applicants.  According to a 2010 survey by the Society of Human Resources Management, 92% of employers use criminal background checks for some or all openings.  Last year the EEOC issued guidelines to employers which do not prohibit the use of criminal checks, but encourage employers to consider the crime, how much time has passed since the conviction and the crime’s relation to a job opening at question.  These guidelines suggest that employers review each case individually and permit applicants to explain why they should be hired even if they had been convicted.

The civil-rights laws do not protect people convicted of crimes, but the EEOC has sued employers in cases where it has concluded that information regarding prior convictions has been used for racial or ethnic discrimination.  As a result, the use of background screenings is becoming regulated by increasing number of cities and states.  Employers who do not want people with violent histories to be in contact with their customers or people convicted of financial crimes handling money, are finding it difficult to comply with the EEOC’s guidelines.

In the BMW and Dollar General cases, the EEOC cited statistical differences in the hiring rates of African Americans and non African Americans after the companies ran criminal background checks. The EEOC characterized both cases as very serious systematic race discrimination cases.

The commission alleges that BMW hired a new contractor at its assembly plant in Spartanburg, SC in 2008 and required a new criminal background check for 645 employees of the prior contractor.  55% of these employees were African American, but out of 88 terminated employees 80% were African American.  Some of these dismissed employees had worked at the BMW plant for over 14 years.  BMW of North America stated that the company believes it has compiled with the law; that BMW has a strong culture of nondiscrimination which is shown by the company’s highly diverse workforce; and that it will defend itself against the commission’s allegations.

Regarding the Dollar General case, the EEOC claims that between January 2004 and April 2007 the company revoked conditional employment offers for 10% of its African American applicants and only for 7% of its non African American applicants.  Since over 344,000 applicants were involved, the commission stated that the numbers created an improper gross disparity.  The EEOC says in the suit that Dollar General uses a formula in hiring process that includes the crime and the time passed since crimes were committed, but that the policy is illegal since it is not sufficiently job-related and does not consider individual circumstances.  Dollar General has countered with the statement that its criminal background checks are created to encourage safe environment for its customers and employees, and to protect company’s assets in a nondiscriminatory manner.

The past efforts of the EEOC to regulate criminal checks have had mixed success.  In one case in 2011, the judge ordered the commission to pay PeopleMark, Inc., a Memphis-based staffing company, $750,000 in legal fees for pursuing a case when the EEOC should have known there was no discrimination.  In another case, Freedman Cos., a Maryland convention-services company, was allowed by the judge to question the commission’s own use of criminal background checks for hiring.

Based on EEOC’s lawsuits against BMW and Dollar General, employers must rethink the circumstances and manner in which they use criminal background checks in the hiring process.  Employers may no longer follow a blanket policy of rejecting all job applicants with criminal records.  Rather, to comply with the EEOC’s policy, each case must be reviewed on an individual basis, and before rejecting an applicant the employer must be able to demonstrate that the job they applied for required an employee without a particular type of background.

For more information on this subject contact Joe Messer at jmesser@messerstrickler.com, or you may call Joe at (312) 334-3440.