pitfalls to avoid background checks terminations chris gantt-sorenson haynsworth, sinkler, boyd this...

Pitfalls to Avoid

Background Checks

Terminations

Chris Gantt-Sorenson

Haynsworth, Sinkler, Boyd

This presentation is not intended as legal advice for a specific situation or fact scenario.

TERMINATION: Tips on Preventing Discrimination

Charges


Overview

Prevention Policies Effective Reporting Mechanism Training Personnel File

Investigation


Prevention: EEOC’s Suggestions

Take ALL steps necessary to prevent harassment and discrimination from occurring

● raise subject affirmatively

● express strong disapproval

● develop AND apply appropriate sanctions

● inform employees of their right to raise and how to raise issue of harassment and discrimination


Effective Preventive Program

Explicit policy against harassment and discrimination

Must define harassment and discrimination Must contain 2 or more reports for employees Must not have a stronger false report

provision that it does an anti-retaliation Should be designed to encourage employees

to come forward


Prevention: PolicyPrevention: Policy

Post, distribute, and maintain policy

Use easy to understand language – English? Maybe others as well…

Give the policy to all employees & have them sign it

Remember to distribute to new employees and have them sign an acknowledgement statement!


Prevention: Training

Provide training sessions for employees and management – tailor to audience

Conduct annual refresher courses Advise employees that harassing or discriminatory

conduct in any form will not be tolerated Promptly investigate any and all claims of offensive

or harassing conduct Monitor the workplace to be sure supervisors and

managers are following policies as written


Personnel File – can help or hurt

Makes all the difference in employee’s post employment allegations of wrongful termination, harassment and discrimination

No personnel file documentation means none of the performance/attendance/behavior issues occurred to the EEOC or the Court


Personnel File

Incidences of Performance, Attendance, Behavior

Involve HR Must be discussed with Employee Documentation without discussing with

Employee is not as helpful to the Employee or to legal defense


Personnel File

Document incident Date and Signed by Attorney Details of occurrence Action taken Employee either counseled or, if problem

continues, written up Do not try to do this retroactively


Personnel File

Date Describe issue Meet with Employee (and HR) If verbal counseling, what was discussed with

employee Signed by Attorney and HR


Personnel File

Date/ Describe issue Succinct guidance about improvement

expected Meet with Employee Include HR (need a witness always) Signed by Attorney and HR ask Employee to sign

OK if employee refuses or wants to write side of story on back


Personnel File

Be Honest Why not? Far angrier if not given notice or chance to

improve, and surprised by termination Provides the Employee opportunity to improve

and grow Feedback vs. never knowing what went wrong

Which would you choose? What is fair to the Employee?


Personnel File

Performance Based Termination Tedious Numerous counseling sessions Verbal and/or written warnings Memorandums to file

Easier to blame it on RIF, job elimination, attendance or rule violations

Honesty goes a long way to avoid litigation Allow Employees to respond


Personnel File

Maintain confidentiality as to employee discipline

To avoid defamation suits, employees should never be reprimanded or terminated in front of third parties.

Performance communicated quietly, politely, and in the strictest of confidence.

Details should be written down and placed in the employee's personnel file.


Personnel File

Treat employees with dignity Always involve HR HR must document personnel file and will

have to move forward with discipline shortly after event


Investigation

Must have it completed within 1 to 4 days Employer liable for failing to remedy or

investigate promptly Employer liable for failing to take proper

corrective or discipline action against alleged offender

Once on notice of an offender, failure to discipline could result in exorbitant punitive damages for second claim


Investigation

Receipt of Complaint Designate who will perform investigation

Human Resources Also need a witness who will be present during interviews to

take notes of all that is said Outsource?

Sensitive situations (high level management) Do not have HR

Insure that no retaliatory actions or changes occur in regards to victim


Investigation

Investigate Promptly (1 to 4 days) Statements of victim, alleged offender and witnesses

dated and signed Summary of what was done to investigate and results Advise victim of outcome of investigation regardless of

outcome Take immediate and appropriate corrective action Follow up to ensure victim has not suffered retaliation

and advise victim to contact HR if any issues


BACKGROUND INVESTIGATIONS



EEOC Report - April 25, 2012

Enforcement Guidance on the Consideration of Arrest and

Conviction Records in Employment Decisions under

Title VII of the Civil Rights Act of 1964


Overview

Does not create new law or regulation National data supports finding that criminal records

exclusions have a disparate impact on race and national origin

Guidance on how use of arrest records can be discriminatory

Blanket Prohibition of employees with criminal record is discriminatory

Guidance will be used by EEOC staff who investigate charges of discrimination applicable to an employer’s use of criminal history records


Arrest v. Conviction

Exclusion of employment based on arrest “in and of itself, is not job related and consistent with business necessity.”

Arrest does not mean criminal conduct occurred Arrests do not indicate final disposition (acquitted) Conviction sufficient to assume applicant engaged in the

underlying conduct. Some exceptions Errors, outdated or incomplete records (how would we

know?)


Exception to use of Arrest

An employer may make an employment decision based on conduct underlying arrest if the conduct makes the individual unfit for the job.

Conduct, and not the arrest, is relevant Ex. School principal arrested for several counts of

endangering welfare of children School’s action in suspending to investigate, and then

terminating after, is linked to conduct that is relevant to the job

*stakes are higher with school children and sex offender


Records could be incomplete

92% of employers do criminal background checks 50% of arrests on FBI database have no final disposition Arrests or convictions applicable to Court’s seal and

expunge orders are sometimes not purged by private companies

Records can be wrong due to misspellings, clerical errors or inaccurate information when data input

Consumer Reporting Agencies are prohibited from reporting records of arrests that did not result in entry of conviction when arrest occurred more than 7 years ago


Discrimination

Disparate treatment Using arrest records inconsistently among classes

Disparate impact Neutral policy or practice that disproportionately

impacts a particular group/protected class Disproportionately excludes people of a particular race Criminal background policy that results in greater

number of African Americans or Hispanics is red flag


Examples of Policies in Report

Policies excluding anyone with other than minor traffic offense

Violent crime convictions for Paratransit driver Second degree murder 40 years lapsed 15 years when crime occurred Expert testifying about recidivism and lapse of time

might have caused court to deny summary judgment to employer


What the EEOC considers persuasive in an employer’s defense to this type of a Charge of Discrimination

Racially balanced workforce will not overcome disparate impact

Employer’s applicant data will be considered Local arrest information may be used to show African

American and Hispanic men are not arrested or convicted at a disproportionate rate

Employer’s reputation in the community for excluding individuals with criminal records

Did application process reflect the actual potential applicant pool?

Were applicants reluctant to apply because of discriminatory practices?


Job Related and Consistent with Business Necessity

Employer’s burden is to show the policy or practice is one that bears a demonstrable relationship to successful performance of the jobs for which it was used

Measure the job for the person and not the person in the abstract

Exclusionary policy must be necessary to safe and efficient job performance

This standard is the one the EEOC will use in investigation of arrest record to deny employment

Articulate how the job relates to the conviction


Job Related and Consistent with Business Necessity

Criminal conduct linked to dangers and risks inherent in the duties of a particular position

Targeted exclusions for particular positions Tight nexus to position in question required Not always required to be individualized

assessment Less discriminatory alternative practice than

one used


EEOC’s 2 safe bets

These two approaches will “consistently meet job related and consistent with business necessity” Employer relies on Uniform Guidelines of

Employee Selection Procedures Employer considers the Green factors (8th

Circuit case law) Nature of crimeTime elapsedNature of job


Uniform Guidelines

Three approaches to validating employment screens 29 C.F.R. §1607.1 Single set of principles for the proper use of tests and

selection procedures as a basis for making employment decisions

Used by the EEOC in the enforcement of Title VII Free to Human Resource Professionals

www.uniformguidelines.com


Green Factors Nature and Gravity of Offense

Harm caused by crime Elements of crime Felonies may be more serious than misdemeanors

Time Lapsed Since Crime Employer policy states duration of conduct Permanent exclusions void Studies of risk of recidivism should be consulted

Nature of Job Held or Sought Job title and duties Level of supervision Location (private home or warehouse)


Individualized Assessments Informs individual that he may be excluded because of past

conduct Give him an opportunity to explain why the exclusion does

not apply to him Factors

Facts and circumstances surrounding offense or conduct Number of offenses Older age at time of release from prison Evidence that individual performed same type of work

without incident Length and consistency of employment history before

conduct


Individualized Assessment (cont.)

Factors (cont.) Rehabilitation efforts Employment or character references Whether the individual is bonded

If individual does not respond to employer’s attempt to gather information, the employer may make its employment decision without the information.


Miscellaneous Compliance with other federal laws and regulations that conflict with

Title VII is a defense Federal laws prohibiting employment of individuals with specific

convictions in certain industries in public and private sector Bank employees Port workers Federal agencies or facilities

Occupational Licenses and Registrations Federal Security Clearance OPM rules – crimes involving dishonesty for 3 years Can apply for waiver with institution (ex. FDIC)

*not preempted by Title VII


Miscellaneous

State and local laws are preempted by Title VII if they are read to prevent anything prohibited by Title VII

Policy must still be job related and consistent with business necessity


Employer Best Practices Eliminate policies that exclude employment due to criminal record Train hiring personnel, managers and decision makers about

prohibition on discrimination Policy

Narrowly tailored Essential job requirements and actual circumstances under

which job is performed Determine specific offenses that may demonstrate unfitness for

specific jobs Determine duration of exclusions Individual assessment


Best Practice cont.

Policy (cont.) Record justification for policy and what references

were consulted Questions about Criminal Records

Limit inquiries to records related to position in question and consistent with business necessity Have you been convicted of any crimes of dishonesty?

Keep information learned confidential and only use for purpose it was intended

Do not ask on application

Thank you

Chris Gantt-Sorenson

[email protected]

864.240.3282


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