EMPLOYMENT BACKGROUND CHECKS: BEST PRACTICES Presented by Peter Lowe, Esq. Brann & Isaacson 184 Main Street P.O. Box 3070 Lewiston, Maine 04240 Phone: (207) 786-3566
Crapshoot: (noun) something that could produce a good or bad result Background Checks Rule Out Establish Bad actors Good judgment
Bad characters Solid work ethic Liars Loyalty Accidents waiting to happen
Qualifications (training, education, certifications, job skills) Criminal Background Checks: EEOC Guidance Federal law allows asking about criminal history, with certain limitations: Disparate impact Relevance to job
Arrest records vs. Conviction records Criminal Background Checks: EEOC Guidance Best Practices (per EEOC Guidelines): Eliminate policies/practices that exclude people from employment based on criminal record Develop a narrowly tailored written policy for screening applicants and
employees for criminal conduct Limit inquiries to records for which the offense would be job-related for the position in question Keep information confidential Criminal Background Checks: EEOC Guidance Factors employers must consider Nature and gravity of the offense/conduct
Time that has passed since the offense Nature of the job held or sought Availability of less discriminatory alternatives Full EEOC Guidance (4/25/2012): http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm Peters Practical Pointers Identify disqualifying crimes Felonies (Class A C)
Theft, fraud, and other crimes of deceit Identify a time frame (5/10/15 years) Individualize your assessment Time elapsed Age of offender Seriousness of offense Frequency of offenses Rehabilitation Connection of offense to job Ban the Box
Have you ever been convicted of a crime or pled guilty or no contest to a crime? If yes, please provide the nature of the crime and the date of conviction. States with Ban the Box Laws for Private Employers
Hawaii Illinois Massachusetts Minnesota New Jersey Oregon Rhode Island
President Obamas Executive Order Ban the Box for all federal agencies ACLU calling on President to extend to all federal contractors STATISTICS
92% of employers subject job candidates to criminal background checks 39% of all background checks had at least one serious flag 33% of American adults have been arrested by age 23 75% of arrestees are male African Americans account for 14% of the population, but 28% of all arrests Sources: http://www.nij.gov/journals/270/pages/criminal-records.aspx; http:// www.eeoc.gov/laws/guidance/arrest_conviction.cfm
Claims Arising from Criminal Background Checks Disparate impact race discrimination (EEOC v. BMW, $1.6 million) Class action suits filed under FCRA (Feldstein v. Amazon.com LLC., Williams v. Amazon.com, Inc.) Protected class discrimination suits
Ban the box claims Negligent Hiring An employer is liable if it hires, retains, or supervises an employee whom it either knows or should have known was not competent or fit for the job and whose incompetence or unfitness creates an unreasonable risk of harm to others because of the employees job-related duties.
(Najera v. Recana Solutions LLC (August 20, 2015) Negligent Hiring: Recent Decisions Najera v. Recana Solutions LLC (August 20, 2015): Employee assaulted co-worker while on the job Victim sued Recana for failure to conduct a criminal background check Not negligent hiring Teri Reagan v. Dunaway Timber Co. (November 2011): Dunaway Timber Co. truck driver struck and killed Reagan while driving company
truck Company had failed to spend $15 on background check for driver, who lied about his driving record on his application $7,000,000 verdict for plaintiffs Social Media 40% of employers use social media to screen candidates, looking to: Evaluate professionalism and social conduct
Evaluate fit for company culture Evaluate qualifications 51% of employers report finding content that caused them not to hire a candidate Sources: http:// www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx?sd=6%2F26%2F2014&id=pr829&ed=12%2F 31%2F2014 ; http://www.go-gulf.com/blog/social-media-pre-employment-screening/
Applicants Mugshots Might be Just a Click Away Rewards of Using Social Media Discovering: Poor judgment Lack of discretion/confidentiality Inappropriate conduct Safeguard reputation Due diligence
Risks of Using Social Media Prohibited inquiries: Race Religion Sexual orientation Age Disability Pregnancy Unreliability of Information
Peters Practical Pointers Dont do it OR Use a non-decision maker (e.g., assistant) Provide screening criteria Limit screener / decision-maker communications Maines New Social Media Law Employee Social Media Privacy law
Makes it illegal to: Require or request that an employee or applicant disclose a social media password; Require an employee or applicant to disclose personal social media account information (subject to an exception for workplace investigations); Require an employee or applicant to add anyone, including the employer, to her list of contacts on a social media account; or Require or ask an employee or applicant to alter settings that affect a third partys ability to view the contests of a social media account Does not apply to information thats publicly available
Reference Checks Do them! Tips: Schedule a time Assure confidentiality Talk to managers, not co-workers Prepare target/individualized questions Get references from the references
Listen for faint praise Assessments Eight of the top ten US private employers now administer pre-hire tests in job applications In 2013, 57% of employers used pre-hire assessments Employers are using both skill-based and personality tests
Source: The Wall Street Journal Todays Personality Tests Raise the Bar for Job Seekers, http:// www.wsj.com/articles/a-personality-test-could-stand-in-the-way-of-your-next-job-1429065001; Cornell HR Review Personality Tests in Employment Selection: Use With Caution http ://www.cornellhrreview.org/personality-tests-in-employment-selection-use-with-caution/ Using Assessments - Risks Legal: Supreme Court: Ricci v. DeStefano, 557 U.S. 557 (2009) ADA
John Constable, The White Horse, 1819 (English) The Romantics watched as cities grew, industry prospered and farming life declined. In an effort to reclaim nature, the Romantics made it a central force in their lives and their literature. Nature was...
Emerging T&E Issues L. Peter Boice Conservation Team Leader 23 March 2003 Outline INRMPs as a substitute for critical habitat designation GAO Study Species of Concern Project Stakeholder Communications INRMPs and Critical Habitat INRMPs prepared under the Sikes Act provide...
Centre IRD de Bretagne Le modèle ROMS et son utilisation sur NYMPHEA Patrick Marchesiello Brest, 13 Janvier 2005 ROMS History Descendant of SPEM & SCRUM (relative of POM) (Song & Haidvogel 1994; Barnier et al., 1998) UCLA: more like developer's...
Student . x. y Const = 50 x ... EViews. Good News: When the standard ordinary least squares (OLS) premises are satisfied: Each of the three procedures is unbiased. The procedure to estimate the value of the parameters is the...
Black Hebrew Israelites. They assert that Negroes, and Indians of North America, Central America, South America, and the Caribbean are all descended from the twelve tribes of Israel. Most reject Judaism and tend to reject Jewish conversion. Most Black Hebrew...
Canada's land. Canada has a bowl-shaped geologic structure rimmed by highlands, with Hudson Bay at the lowest point. The country has eight major physiographic regions—the Canadian Shield, the Hudson Bay Lowlands, the Western Cordillera, the Interior Lowlands, the Great Lakes-St....
Tedium. Individual Needs. 10 Card Turnover. Have the cards 'key word' upwards. When your partner says 'go', say the definition for the key word. Turn the card over to check your answer - if you are right, leave the definition...
The Safety, Health and Environment (SHE) Unit functions to provide competent health and safety advice, training and support to the University. This varies from general issues such as manual handling and fire safety, to specialist subjects like radiation, laser, biological...
Ready to download the document? Go ahead and hit continue!