“Ban the Box” Movement Grows as Ohio Joins In

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Ban the Box

Criminal history & hiring: it’s complicated.

When asked what factors would negatively impact an organization’s hiring decision for a potential candidate, ERC’s research indicates that “the conviction of a crime directly related to the position” is number one. Even at 77%, this number is hardly surprising.

Certainly any employer feels obligated to take every precaution to both keep their staff and clients safe as well as build a strong workforce they can trust.

So, should an employer be faced with a hiring decision for an applicant whose criminal history calls into question their ability to perform their job duties appropriately, some hesitance about moving ahead with the hire is to be expected.
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What HR Professionals Need to Know about the EEOC’s Guidelines on Criminal Backgrounds

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According to a survey released by the Society for Human Resource Management in 2012, approximately 69% of organizations reported that they conduct criminal background checks on all of their job applicants. However, what happens if something questionable shows up on the background check that reveals a criminal past? Do you have the right to ask them about it?

Yes, you do. The Equal Employment Opportunity Commission (EEOC) guidelines strongly recommend employers speak to their candidates about a criminal history brought up in a background check.

In a Guidance document released in 2012, the EEOC describes the circumstances under which an employer’s use of arrest and conviction records can violate Title VII’s disparate treatment and disparate impact theories. The EEOC continues to embrace a test that evaluates criminal history, known as the Green factors

The Green factors include:

  1. The nature or gravity of the offense or conduct
  2. The time elapsed since the conviction and/or completion of the sentence
  3. The nature of the job sought or held

But what is significant about the enforcement Guidance? It tries to assist employers with a better understanding of how the EEOC believes these factors should be applied.

Application questions

As a best practice, the EEOC encourages employers to not ask about convictions on an employment application. However, if the employer does ask the applicant about their criminal background past, the Guidance recommends that they only ask questions that are relevant to the position and job duties.

Arrest records

The Guidance states that an employer may not use arrest records to solely treat an applicant differently and cannot use arrest records alone as a reason to deny employment. However, if an employee has been arrested, the Guidance allows employment decisions to be based on the conduct underlying the arrest. As long as the reason for which the employee or applicant was arrested is relevant and makes the individual unfit for the position, than the employee or applicant may be terminated/not offered employment for the arrest.

Individualized assessments

This is when an employer will inform an employee or applicant that he or she will be screened for a criminal background. The individual is given an opportunity to respond and then the employer considers the circumstances before making a decision.

“In the Guidance, the EEOC states that employers who develop a targeted screen using the Green factors as well as the individualized assessment, can avoid Title VII liability.”

Compliance with federal law:

“The Guidance affirms that an employer who is conducting criminal background checks in order to comply with another federal law or regulation will not violate Title VII.”

However, the EEOC states that if a screening exceeds the scope of a federally imposed restriction, liability can occur if an employer doesn’t provide evidence that justifies an enhanced policy.

EEOC Guidance check list for HR professionals

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Keeping Background Checks Legal Under EEOC Guidance

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eeoc background checks Keeping Background Checks Legal Under EEOC Guidance

The EEOC (Equal Employment Opportunity Commission) and the FTC (Federal Trade Commission) published a joint publication on employment background checks in 2014. The guide explains the rights and responsibilities of employers in addition to those of applicants.

The publication addresses three different phases of background checks—before getting the background information, using background information, and disposing of background information.
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An Introduction to Background Checks for Employers

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For the new HR professional, and perhaps even for more seasoned HR managers, the process of conducting background checks can be a difficult one to manage. Corporate Screening, one of ERC's Preferred Partners, has provided us with some background knowledge to help us answer our key questions.

What is a background check? Why should my company conduct them?

Background checks help employers minimize risk for their company and their employees. They provide varying levels of information, depending on the type of position and job duties. Job applicants, current employees, and volunteers may all be asked to submit background checks... and for some positions, screening is required by federal or state law.
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4 Guidelines for Managing Pregnancy & Maternity in the Workplace

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Before your organization doesn't hire, promote, or accommodate your next pregnant employee—beware—because pregnancy-related lawsuits are increasing and you could be putting yourself at risk.

According to the Equal Employment Opportunity Commission (EEOC), pregnancy discrimination claims have been steadily rising over the past 15 years. In addition, the EEOC has said that one of its six national priorities is to address issues involving pregnancy-related limitations. In light of these trends, here are 4 essential guidelines employers must follow when managing pregnancy and maternity in the workplace.

Managing Pregnancy and Maternity in the Workplace

1. Don't let pregnancy affect employment decisions.

If you are considering not hiring, promoting, or providing certain job assignments to a pregnant employee or job candidate, or someone you think is trying to get pregnant, watch your steps closely.
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ADA Compliance: How Much Is Enough?

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The Americans with Disabilities Act (ADA) requires that employers provide reasonable accommodations to employees with disabilities. But how much accommodation is enough? When does an accommodation become unreasonable? How reasonable is reasonable?

Reasonable Accommodations Defined

According to the Equal Employment Opportunity Commission (EEOC), reasonable accommodations are any effective changes or adjustments to a job or work environment that allow a qualified applicant or employee with a disability to perform the essential functions of the job.
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Court: Random Alcohol Tests Not in Violation of ADA

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The U.S. District Court for the Western District of Pennsylvania, in the Equal Employment Opportunity Commission's (EEOC) case against U.S. Steel Corp., ruled that random tests for alcohol can be performed on probationary employees who work in safety sensitive positions, and that doing so does not violate the Americans with Disabilities Act (ADA).

In the 2013 case, the EEOC argued that the company's policy of conducting breath alcohol testing at random on probationary employees could be considered a medical examination and that ADA restricts employers from requiring such exams unless it meets the standard of being "job related and consistent with business necessity."

Meanwhile, U.S. Steel held that its policy was lawful on several conditions, including that it was job related and consistent with business necessity, that it was part of a voluntary health and safety program negotiated and agreed upon with its union, and necessitated by the company's obligations under federal safety and environmental laws and regulations (Source: SHRM).

The court decision affirms that employers can take reasonable steps, including random alcohol tests, to keep workers safe on the job. Although, employers should proceed cautiously and still heed the EEOC's guidance regarding medical examinations under ADA.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

ADA/FMLA Training Course

What the New EEOC Guidance Means for You

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The Equal Employment Opportunity Commission’s (EEOC) 2012 guidance on background checks suggests that employers need to exercise more due diligence in their hiring practices. Its guidance on background check practices underscores the importance of five key practices in the hiring process.

1. Hiring policies should not exclude people from employment based on status.

Policies that automatically exclude people from employment based on only certain criteria (such as criminal status, age, disability, etc.) could pose liability. Employers should refrain from developing narrow policies of this nature to avoid potential legal issues.

2. Employers need to monitor adverse impact.

Hiring practices that result in adverse impact for a protected group are unlawful. If a hiring practice or selection method is adversely impacting a protected group, employers should not use it. This is true of any method used to base a hiring decision such as ability/personality assessments, drug tests, background checks, credit checks, etc.

3. Employers must hire based on the essential functions of the job.

The EEOC’s guidance suggests that employers must make hiring decisions based on whether candidates can do the essential job functions. Employers must identify those essential requirements in the hiring process and determine if a criminal record (for example) prevents a candidate from performing those functions.

4. Hiring criteria has to be job-related.

One of the most consistent trends in guidance provided by the government (and EEOC) on hiring practices is to keep all hiring decisions based on job-related criteria. If the criteria that employers are using to evaluate job candidates are not job-related, it will likely not hold up in court. For example, if an applicant's criminal offense is unrelated to the job, then you may not be able to exclude an applicant.

5. Employers must train decision-makers about employment discrimination.

The EEOC’s guidance emphasizes the importance of employers training both HR practitioners and managers on employment discrimination. Any individual who makes hiring decisions should understand employment law as it relates to recruitment and hiring.

While the EEOC only specifically addressed criminal background checks in its guidance, employers should be cautious with using any hiring practices, criteria and/or policies that are questionable against the guidelines provided.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

Additional Resources

Save on Background Check Services!ERC’s Preferred Partner Corporate Screening Services, Inc. offers ERC members discounts averaging over 20% off standard background screening products. 

Behavioral Interviewing
This workshop gives participants the skills they need to effectively plan for and conduct an effective behavioral-based interview. It also guides participants through effectively evaluating candidates so they can hire the best candidate. Emphasis will be placed on the selection process, including legal issues facing interviewers.