Equal Employment Opportunity Commission

Apologies, I’m a little behind the curve on this so you will see two Compliance News Flashes this week.

This particular Compliance News Flash we drafted covers the following topics:

  • Employers getting into hot water over the types of documents they request from employees when completing the Form I-9, leading to claims of discrimination.
  • The Bureau of Consumer Financial Protection is on track to have the least (that’s right, least) amount of enforcement actions on record.
  • An enforcement action by the Equal Employment Opportunity Commission (EEOC) related to race discrimination and the use of criminal history information for employment screening practices.

Here’s a free webinar that will snap you out of your deep despair over the fact that it is now dark at 5:02 pm.

I will join Hire Image CEO, Christine Cunneen, to present a 1 hour webinar packed with actionable information and best practices to help you:
  • Minimize the risk associated with background screening of applicants and current employees;
  • Be aware of new state laws that are increasing restrictions on employers;
  • Know what you need to do in light of recent EEOC activities that could signal major changes to come in the background screening process.

This activity has been approved for 1 HR (General) recertification credit hour toward California, GPHR, HRBP, HRMP, PHR and SPHR recertification through the HR Certification Institute.

Click here to register. The webinar is November 17th at 3 pm EST.

Today’s Wall Street Journal has an interesting article about “online sleuthing” and privacy concerns.  Employers use social media when screening candidates for employment and it’s no surprise that police and prosecutors use it as well to tell them something about someone, locate an individual or otherwise track them. Sometimes, law enforcement use social media by “impersonating users or setting up fictitious accounts to gather intelligence or evidence for trials” according to the article.  In a survey cited in the article, “…about 500 local, state and federal law enforcement officers commissioned last year by database provider LexisNexis,Corp. 81% said they actively used social media in investigations. Asked whether creating fake online personas or profiles was ethical, about 80% agreed that it was, 11% were neutral, and 9% disagreed.”

Using this as background, let’s consider the use of social media for employment screening.  There are permissible ways an employer can use social media in this context and impermissible ways to use social media.  There are background screening companies who operate under the Fair Credit Reporting Act (FCRA) and lawfully provide such information, but the concern comes when employers and/or individuals conduct their own, informal checks on social media when considering an applicant or employee.

In the employment context, an employer likely blurs the line when they do the screening in-house and consider information or factors about an individual that may lead to a discriminatory employment practice.  Say an employer searches social media to learn more about a candidate and learns they are an African American woman and factors that into their hiring decision or decision not to call the candidate in for an interview.  That could be a violation of Title VII of the Civil Rights Act as an unlawful employment practice.  In fact, the EEOC has addressed the use of social media.  This quote sums it up: “… in response to a letter from Senators Charles Schumer and Richard Blumenthal, the EEOC reiterated its long-standing position that personal information-such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. Quoting from a 2010 informal discussion letter from the EEOC, Miaskoff noted that ‘the EEO laws do not expressly permit or prohibit use of specified technologies. . . . The key question . . . is how the selection tools are used.'”  Read more on the EEOC here.

If you want to use social media for employment screening purposes consider these factors:

  1. Hire a reputable background screening company operating under the FCRA.
  2. Set parameters around what you would like reported.  Typically these types of background checks will be limited to user generated content which exhibits violent or sexually explicit activity, hate speech or potential illegal activity such as drug use.  They can also report positive information such as charitable or volunteer participation, educational recognition and achievements and so on.
  3. It is important that the content being reviewed and considered is user generated and not third party commentary, as the latter cannot be verified.
  4. An employer cannot directly or indirectly violate a social media sites terms and conditions or terms of use and go “behind the curtain” for information.  Only use what is publically available on the internet.  Don’t “friend” someone or their friends to learn more about a candidate.  Even if it may not be illegal, it’s creepy.
  5. Don’t ask an employee or job candidate for their password so you can look at their social media account.  In a handful of states that is illegal.

Bottom line, an employer can use social media to screen candidates.  However, be aware of restrictions around its use and use a reputable background screening company for this purpose, one which provides these reports under the FCRA.

On September 30th, the Equal Employment Opportunity Commission (EEOC) announced that it entered into a “cooperative agreement” with a background screening company regarding its implementation of revised policies and practices to ensure that its pre-employment screening complies with the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GINA), and civil rights laws’ anti-retaliation provisions.  Janet Elizondo, director of the EEOC’s Dallas District Office, stated, “Increasing employment opportunities through forward-thinking hiring and recruitment models is what both the EEOC and businesses should support.  In doing so, it is important for the EEOC to engage not only with employers directly, but also with their business partners who play an important role in facilitating connections between jobs and jobseekers.”

Note the last part of Elizondo’s statement, “it is important for the EEOC to engage not only with employer directly, but also with their business partners who play an important role in facilitating connections between jobs and jobseekers.”  According to the EEOC’s press release, the agreement with the EEOC acknowledges the company’s “…proactive changes to screening policies and practices, employee training guidelines and website information, to ensure compliance with the ADA and GINA with regard to applicants. It has assured that a job applicant’s medical history and any civil rights, personal injury, or workers compensation claims made by an applicant against his or her prior and present employers are not inquired into and will not be disseminated to prospective employers.”  The Houston based company works with job applicants as an “employment agency”, according to their website, as well as a pre-employment screening company.

On July 29th, U.S. District Judge Andrea Wood ruled that Dollar General must give the Equal Employment Opportunity Commission (EEOC) hiring records from 2004-2008, and explain to the EEOC the “purported business necessity” for performing criminal background checks on job applicants.  Dollar General had challenged the EEOC’s requests, arguing that the post-2008 data it had provided to the EEOC was enough, and that any information about the potential business necessity of background checks was an affirmative defense that it should not be forced to disclose.  Judge Wood also declined to shift the cost of Dollar General’s production to the EEOC stating, “the general presumption in discovery is that responding parties must bear the expense of complying with discovery requests.”   Dollar General claimed that production of pre-2008 information would require it to expend approximately 160 man-hours and $16,000.

The ruling comes as part of ongoing EEOC litigation against Dollar General which started in June 2013.  The initial Complaint alleges that Dollar General’s criminal background checks have led to a disparate impact on African-American job applicants during the time period from 2004 to present (previously reported).

EEOC v. Dolgencorp, LLC d/b/a Dollar General, No. 2013-cv-04307 (N.D. Ill. July 29, 2014).

 

For those of you tracking anything and everything about the EEOC’s criminal records guidance, this is for you.   

The U.S. Commission on Civil Rights (USCCR) has posted the transcript of the December 2012 briefing on assessing the impact of criminal background checks and the EEOC’s guidance on the consideration of arrest and conviction records in employment screening.  I provided testimony on behalf of the National Association of Professional Background Screeners (NAPBS), who was invited to testify at the briefing along with EmployeeScreenIQ, National Small Business Association, SHRM, National Retail Federation and the National Association for Home Care and Hospice.  The list of  invited speakers is longer, these were just on one panel.

To read the transcript click here

At the upcoming August 16th meeting of the USCCR, Commissioners are expected to vote on a report to the briefing. If approved, Commissioners will write individual statements to the report.   It is expected the report will be approved, although it is not expected that the USCCR will issue recommendations with the report regarding the use of criminal background checks and employment screening.