criminal background checks now on the ofccp's radar · • joins ranks with the eeoc on...

Criminal Background

Checks Now on the

OFCCP's Radar:

The Ins and Outs of

Directive 306

Pamela Q. Devata, Esq.

Valerie J. Hoffman, Esq.

2 | ©2013 Seyfarth Shaw LLP

Your Presenters Today

Pamela Q. Devata

(312) 460-5882

[email protected]

Valerie J. Hoffman

(312) 460-5870

[email protected]

mailto:[email protected]

mailto:[email protected]


Our Agenda

Overview of OFCCP Directive 306

What is Driving OFCCP and EEOC to Act?

Digging into Directive 306

Impact on Federal Contractors

Best Practices and Next Steps

• EEOC Guidance

• TEGL


Directive 306

• Through the Directive the OFCCP:

• Joins ranks with the EEOC on criminal background checks

► EEOC’s Guidance recommends not asking about arrest or

convictions on job applications

► Only ask about criminal record relevant to a specific job

• Outlines new procedures affecting contractors that use federally

assisted workforce systems to:

► post jobs and/or

► screen and refer candidates

• Directive issued on January 29, 2013

► EEOC issued its Guidance April 25, 2012

• EFFECTIVE IMMEDIATELY


Background of Directive 306- Statistics

• Recent decades- exponential increase of Americans

with criminal history records

• Now 1/3 adults have criminal record

• Often

• arrest not leading to conviction

• conviction where person not sentenced to incarceration

• conviction for a non-violent crime

• 2.3 million Americans are incarcerated daily

• Racial and ethnic disparities reflected in incarceration

rates


Background of Directive 306- Statistics

• Pew Center on the States (2008, 2009):

• Incarcerated: 1/106 white men, 1/36 Hispanic men, 1/15 African

American men

• Adults under correctional control (probation, parole or

incarceration): 1/45 whites, 1/27 Hispanics and 1/11 African

Americans

• US Census Bureau (2010), FBI Uniform Crime

Reports (2010) and Bureau of Justice (2007)

statistics:

• African Americans represent

► 13% of the overall population

► 28% of those arrested

► almost 40% of the incarcerated population


“Policies that exclude people from employment based on

the mere existence of a criminal history record and that

do not take into account the age and nature of an

offense, for example, are likely to unjustifiably restrict the

employment opportunities of individuals with conviction

histories.

Due to racial and ethnic disparities in the criminal justice

system, such policies are likely to violate federal

antidiscrimination law. Accordingly, contractors should

carefully consider their legal obligations before adopting

such policies.”

Directive 306


OFCCP Adopts the EEOC’s Guidance

• As described in the EEOC’s Enforcement

Guidance, the nondiscrimination principles of

Title VII prohibit both:

• Disparate treatment

► e.g., treating whites with a criminal record more favorably

than similarly-situated African Americans with the same or

similar criminal record and

• Disparate impact

► e.g., requiring “clean” criminal records, which

disproportionately exclude minority applicants


EEOC’s Guidance

• An Employer will likely show job relatedness and

consistency with business necessity if it:

• Validates under Uniform Guidelines on Employee Selection

Procedures (UGESP)

OR

• Develops a targeted screen considering the following:

► Nature/gravity of the offense

► Time since conviction and/or completion of the sentence; and

► Nature of the job held or sought

Note: These are the SAME factors that have been in effect since

1987;

Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975)


EEOC’s Guidance: 3-Factor Test

• EEOC Guidance gives detail to what the 3 factors

mean:

• Nature and gravity of the offense

► the harm caused

► the legal elements of the crime

► the classification of the offense (e.g., misdemeanor vs. felony)

• Time since the conviction and/or completion of the sentence

► includes evaluation of recidivism

• Nature of the job held or sought

► more than just job title

► evaluation of specific duties, essential functions, and environment


OFCCP’s Directive Regarding

Individualized Assessment

• Individualized Assessment

• OFCCP (like the EEOC) recommends an “individualized

assessment” of applicants

• Not “required” BUT employers will need to evaluate if:

► There are any criminal offenses that have a “demonstrably tight

nexus to the position in question” such that an individualized

assessment may be circumvented

• Tremendously burdensome / logistically difficult


OFCCP’s Directive Regarding

Individualized Assessment

• Evidence an employer should review:

• facts or circumstances surrounding the offense or conduct;

• number of offenses for which the individual was convicted;

• age at the time of conviction, or release from prison;

• evidence that the individual performed the same type of work,

post conviction, without any known incidents of criminal

conduct;

• length and consistency of employment before and after offense;

• rehabilitation efforts; and

• whether individual is bonded under a federal, state, or local

bonding program.


Individualized Assessment Options

• Consider timing of individualized assessment: • At time of application

• During interview

• After interview

• After background check completed

• Record keeping • worksheet

• excel spreadsheet/master list

• May be able to use vendor to assist in gathering /get some information • education/employment information

• request additional information in pre-adverse action

► telephone call/discussion

► applicant submit written submission


Arrest Records

• OFCCP: Since an arrest alone does not necessarily

mean that someone has committed a crime, should not

assume that arrest = committed offense.

• EEOC Guidance: Use of arrests has a per se disparate

impact

• Use of arrest records is not job related or consistent with

business necessity

► Employers may base a hiring decision on underlying conduct if the

conduct makes the individual unfit for a position

► Only way an employer will learn about the conduct is to either:

• Investigate; or

• Talk to the individual


Compliance with Other Laws

• Employers should evaluate whether other laws on

which they may be relying as a defense to run specific

criminal history or eliminate an applicant/employee are

preempted by Title VII.

• If state or federal law regulates, you should comply with

those laws

• Some reason that they are in effect, presumably job

relatedness


TEGL: Additional Screening

Requirements

• Training and Employment Guidance Letter (“TEGL”),

issued in May 2012, governs programs receiving federal

financial assistance, including:

• state Job Banks

• entities that provide assistance to job seekers in locating and

obtaining employment; and

• entities that assist employers by screening and referring

qualified applicants

• Will impact contractors

• Who are subject to VEVRAA ($100K in federal contracts)

• Those who are not subject to VEVRAA posting requirements

but voluntarily list jobs with covered entities


The Core of What TEGL Requires

• Covered entities must identify vacancy announcements

that include hiring restrictions based on arrest and/or

conviction records

• If identified, must send warning notice to the employer that

gives the opportunity to remove or edit the vacancy

announcement.


The Core of What TEGL Requires

• If not removed, covered entities must accompany job

posting with a Notice that explains:

• Criminal history exclusions may have an adverse impact on

protected groups and

• Those with criminal history records are not prohibited from

applying for the posted position.

• Job seekers who are referred for positions where the

job posting takes criminal history into account are to be

given Notice along with the job announcement


Federal Contractors More Likely to be

Stung

• Federal contractors face routine audits • Pitched as informational but likely to be rolled-out as required in audits

• Required to keep applicant flow data, which will contain

race/ethnicity information

• If there is an adverse impact, must perform “steps

analysis”

• Often contractors use “failed criminal background check” as one

of the disposition codes

• We are already seeing evidence that the OFCCP is

asking about criminal background check policies and

practices

• Time to ensure you have “audit-ready” policies


Best Practices/ Considerations

Create written policy/ procedures for screening for criminal records

Eliminate Bright Line Policies (ie: we don’t hire criminals)

Identify essential job requirements and the actual circumstances under which the jobs are performed

Only ask about and request criminal history information that is job related to those requirements and consider timing of such question

Determine the specific offenses that may demonstrate unfitness for performing such jobs

Determine the duration of exclusions for criminal conduct based on all available research and evidence (consider: indiv assessment process)

Record the justification for the policy and procedures


Best Practices/Considerations

Note and keep a record of consultation and research considered in crafting the policy and procedures

Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination

Keep information about the criminal records of applicants and employees confidential

Remember to follow Fair Credit Reporting Act requirements

Allow applicant opportunity to discuss/dispute/explain criminal history

Consider timing of Criminal History

Consider timing of Background Checks


Questions???

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