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Today’s Presenters
Stephanie E. Lewis Jackson Lewis P.C. | Greenville [email protected]
864-672-8048
Kristen M. Baylis Jackson Lewis P.C. | Denver [email protected] 303-876-2217
Camila Fellabom [email protected] 843-300-3400
About the Firm Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation 800 attorneys in 57 locations nationwide Current caseload of more than 6,500 litigations approximately 650 class actions Founding member of L&E Global A leader in educating employers about the laws of equal opportunity, Jackson Lewis understands the importance of having a workforce that reflects the various communities it serves
Strategically Located Throughout the Nation to Serve Employers’ Needs
Locations Nationwide*
*Jackson Lewis P.C. is also
affiliated with a Hawaii-based firm
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Goals
Describe the legal concerns related to background checks, credit
checks, and social media screening
Understand how the hiring process can impact legal
exposure for the company
Explain the difference between diversity and EEO
Diversity and EEO
Diversity Promote Inclusiveness
EEO Equal Opportunity
Refresher: Federal EEO Laws
● Title VII
● ADA
● ADEA
● Others
Reviewing Applications
EEO StatementPersonal InformationWork AuthorizationEmployment Desired
Ability to Perform JobJob-Related SkillsEducation History
Reviewing Applications
Military ServiceCriminal Convictions (“Ban the Box”)Licenses & Certificates
References (Business/Personal)Limitation/RestrictionsCertification/Attestations
Interviewing: Questions to Avoid
● Age/DOB?
● Where were you born?
● “Native” tongue?
● Able to handle hours/pressure?
● Plans to marry/have kids?
Starting Off on the Right Foot:
Screening Job Applicants Without Breaking the Law
Pre-Employment Screening
● Social Media
● Credit Checks
● Background Checks
Poll Question #1
Do you check applicants’ social media sites during the hiring process?
Social Media Screening
PROS ● Invaluable character
information ● Easier to avoid a bad hire ● Avoid negligent hiring claims
CONS ● Lots of impermissible information ● Can taint an otherwise legal
decision ● Tempting to use improper
information ● Increases likelihood of litigation ● Bad publicity
Credit Checks States now limiting use: CA, CT, HI, IL, MD, OR, WA, CO, NV, VAMost require demonstrated nexus to job dutiesCalifornia and Oregon prohibit use for most positions29 others and D.C. considered similar laws in recent yearsEEOC filing pattern and practice lawsuits, claiming blanket exclusions, have unlawful discriminatory impact on minorities
Fair Credit Reporting Act (FCRA) Don’t forget obligations under the FCRA ● Written separate disclosure stating that a consumer report may be obtained
for employment purposes ● Written authorization ● Pre-adverse action notice – summary of rights and copy of report ● Adverse action notices
FCRA enforced by U.S. Federal Trade Commission February 2014: EEOC and FTC co-authored two documents ● Background Checks, What Employers Need to Know (EEOC Guidance) ● Background Checks: What Job Applicants and Employees Should Know
(FTC Guidance)
Poll Question #2
Do you run criminal background checks on applicants during the hiring process?
Criminal Background Checks
Disparate impact on African Americans, Hispanics, and others EEOC: Is process job-related and consistent with business necessity? ● Targeted screens (i.e., nature of crime, time elapsed, nature of job) ● Individualized assessment (a.k.a.—a dialogue) ● Blanket exclusions = high risk!
92% of employers use criminal background checks
Criminal Background Checks Potential for Class Actions ● Eliminating Barriers in Recruiting and Hiring
○ The EEOC will target class-based, intentional recruitment and hiring discrimination as well as facially neutral recruitment and hiring practices that adversely impact particular groups.
BMW Settlement for Use of Background Checks on Temporary Workers ● Consequences
○ $1.6 million in fines ○ Agreement to change background check screening
“Ban the Box” Legislation
Over 100 cities and counties have adopted “Ban the Box”
● Of these, 7 states (HA, IL, MA, MN, NJ, OR, RI) prohibit private employers from inquiring about conviction history on job applications
● EEOC endorsed removing question from applications
Practice Pointer: Remove question from application and ask after conditional offer
Some Good News: Tax Credits for Hiring ● Work Opportunity Tax Credit (WOTC)
○ Federal tax credit for hiring certain target groups ● December 18, 2015
○ President Obama signed five-year extension of the WOTC program (through 2019) ● Nine Targeted Groups, including:
○ Veterans, SNAP (Food Stamp) Recipients, TANF Recipients, Ex-Felons, Long-Term Unemployed (27 weeks+)
● No limit on number of individuals employer can hire
● Credit as much as $9,600
○ 40% of the first $24,000/year of wages
Key Takeaways
Select your consumer reporting agency with care
Review job applications and postings for legal compliance
Designate and train staff making accept/reject decisions
Implement FCRA compliance policy with form notices
PeopleMatter Demo
HRCI & SHRM Today’s Webinar
HRCI Credit: PendingRecertification Credit Hours Awarded: 1Specified Credit Hours: HR (General)
SHRM Activity ID: 16-VYH0YProfessional Development Credits (PDCs): 1
Q&A
Stephanie E. Lewis Jackson Lewis P.C. | Greenville [email protected]
864-672-8048
Kristen M. Baylis Jackson Lewis P.C. | Denver [email protected] 303-876-2217
Camila Fellabom [email protected] 843-300-3400
