Title Goes Here Moderator: Scott Brutocao Presented By: Bruce A. Griggs Michael W. Fox Federal Agencies at Work: New EEOC Guidance On Criminal Background Checks and The NLRB’s New Take On Social Media June 29, 2012

New EEOC Guidance On Criminal Background Checks

Guidance summarizes the EEOC’s long- held position that employers’ reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin EEOC Issues Guidance

Disparate Treatment and Disparate Impact Claims

Title VII violations may occur in two situations: 1.When employers treat criminal history differently for different applicants/employees, based on their race or national origin (disparate treatment) or 2.When an employer’s neutral background check policy or practice disproportionately impacts protected individuals (disparate impact), unless the policy is job-related and consistent with business necessity Disparate Treatment and Disparate Impact Claims

Disparate treatment Employer makes distinctions between two applicants/employees of different races based on the employer’s judgment as to the relative severity of past criminal convictions. “[A]n employer’s decision to reject a job applicant based on racial or ethnic stereotypes about criminality – rather than qualifications and suitability for the position – is unlawful disparate treatment that violates Title VII.” 1. Disparate Treatment Claims

Evidence used to establish discrimination in employer’s use of criminal records: Biased statements Inconsistencies in the hiring process Similarly situated comparators Employment testing Statistical evidence 1. Disparate Treatment Claims

Majority of the Guidance discusses the second “disparate impact” type of Title VII race or national origin discrimination 2. Disparate Impact Claims

The EEOC’s Initial Burden Identifying the policy or practice that causes the disparate impact

For a disparate impact claim, the EEOC must: 1. Identify the policy or practice causing the disparate impact; and 2. Confirm that there is a disparate impact The second “confirmation” step suggests more EEOC requests for voluminous applicant and hiring data, in evaluating disparate impact Disparate Impact Claims – EEOC’s Burden

The Commission repeats its long-held position that an arrest, by itself, is never job-related and consistent with business necessity Arrest does not establish that criminal conduct has occurred Individuals are presumed innocent until proven guilty Many arrests do not result in convictions Comports with O-D Comply: Background Checks advice generally not to base employment decisions on arrest records Arrests

The Employer’s Burden The Business Necessity Defense

Once the EEOC has established disparate impact, the burden of proof switches to the employer to prove affirmative defense Policy or practice is job-related and consistent with business necessity Disparate Impact Claims – Employer’s Burden

2 ways for employers to establish the “job- related and consistent with business necessity” defense: 1.Validation of criminal conduct exclusion, by using the Uniform Guidelines on Employee Selection Procedures 2.Targeted screening process Establishing the “Business Necessity” Defense

Takes into account the following 3 factors: 1)The nature and gravity of the offense or conduct; 2)The time that has passed since the offense, conduct, and/or completion of the sentence; and 3)The nature of the job held or sought. Targeted Screening Process

Assessed with reference to the harm caused by the crime Legal elements may be instructive (e.g., felony theft involves deception, threat, or intimidation) Misdemeanors treated less severely than felonies Factor #1 – Nature and Gravity of Offense

Relevant information includes how much the risk of recidivism declines over a specified time EEOC cites various studies regarding recidivism (6-15 years?) No consensus on age of relevant criminal records Factor #2 – Time Passed Since Offense

EEOC’s favorite example: 55-year old African American paratransit driver terminated after employer learned of his conviction for second- degree murder 40 years earlier Factor #2 – Time Passed Since Offense

Criminal conviction should link to the essential functions of the position in question Factor #3 – Nature of Job Held or Sought

Job title – starting place Nature of job duties (e.g., data entry, lifting boxes) Circumstances in which job is performed (e.g., level of supervision, interaction with vulnerable adults) Job’s environment (e.g., in warehouse, private home, etc.) Factor #3 – Nature of Job Held or Sought

EEOC Guidance: For any individuals “screened out” by this targeted screening process, employer’s policy should then provide “an opportunity for an individualized assessment” Individualized Assessment

Notice to individual that he/she has been screened out because of criminal conviction Opportunity to demonstrate that the exclusion should not be applied due to his/her particular circumstance Consideration by the employer as to whether the additional information provided by the individual Warrants an exception to the exclusion and Shows that the policy as applied is not job- related and consistent with business necessity. Individualized Assessment – Factors

1.Individual’s showing that he/she was not correctly identified in the criminal record or that the record is otherwise inaccurate 2.Facts or circumstances surrounding offense or conduct 3.Number of offenses for which individual was convicted Individualized Assessment – Factors

4.Length and consistency of employment history before and after the offense or conduct 5.Rehabilitation efforts (e.g., education/training) 6.Employment or character references and any other information regarding fitness for the particular position 7.Whether individual is bonded under a federal, state, or local bonding program Individualized Assessment – Factors

The EEOC’s Burden (Again) Less Discriminatory Practice

Even if employer successfully demonstrates that its policy or practice is job-related and consistent with business necessity, EEOC may still prevail EEOC must demonstrate there is a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice, but the employer refused to adopt it Disparate Impact Claims – EEOC’s Burden (Again)

Compliance with federal laws and regulations is a defense to a charge of discrimination E.g., federal government employees, federal security clearances Guidance and Federal Law

Compliance with state and local laws does not shield employers from violating Title VII All 50 states and D.C. require criminal background checks for certain occupations, such as nurses, elder caregivers, daycare providers, and school teachers Counties, cities, and other municipalities increasingly require background checks Guidance and State Law

EEOC’s Employer Best Practices

General Eliminate policies or practices that automatically exclude people from employment based on any criminal record. EEOC’s Employer Best Practices

Developing a Policy Develop a narrowly tailored written policy for criminal background screening: Identify essential job requirements Determine the specific offenses that may demonstrate unfitness for performing such jobs Determine the duration of exclusions for criminal conduct Record the justification for the policy Note and keep a record of consultations and research considered in crafting the policy and procedures. EEOC’s Employer Best Practices

Questions about Criminal Records When asking questions about criminal records, limit inquiries to records for which exclusion would be job-related for the position in question and consistent with business necessity. EEOC’s Employer Best Practices

Confidentiality Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended. EEOC’s Employer Best Practices

Training Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination, and about your background check policy. EEOC’s Employer Best Practices

1. Background check practices or policies should be revised to include targeted screening process: Consideration of 3 factors Individualized assessment Policy/matrix with objective criteria that don’t unnecessarily box you in 2. “Red light, green light” criminal background assessments should be revisited “Red light” likely over “Green light” – still some problems here 3. Client requirements (e.g., “no employees with felonies”) and state law requirements (e.g., for nurses, teachers, etc.) will not shield employers from Title VII liability 4. Conviction questions on employment application do not need to be removed – yet Takeaways

Social Media – The NLRB’s New Take

Background – Social Media Takeover - Twitter, Facebook and MySpace We are all affected by social media Examples: Facebook postings Tweets MySpace Jobitorial.com (formerly Jobvent.com) Chatter.com

The Audience is Everyone The Myth of Anonymity The Myth of Impermanence

NLRB Watch out for the new Labor Board’s position on monitoring employees’ social media activities. The Acting General Counsel of the NLRB has issued three reports regarding social media cases, one on August 18, 2011, one on January 24, 2012, and one on May 30, 2012.

NLRB National Labor Relations Act Section 7 rights – “protected, concerted activity” Group of employees bringing complaint about working conditions Single employee with complaint related to a group concern Individual pursuing group action or with the purpose of further group goals.

NLRB To publicize union and nonunion employees’ rights to engage in Protected Concerted Activity, on June 18, 2012 the NLRB launched a webpage devoted to publicizing recent cases that address the issue.

NLRB Cases Hispanics United of Buffalo, Inc. Employees upset about a co-worker’s criticisms of their job performance Initial postings - “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how d u feel? Coworker response postings: “What the f…Try doing my job I have 5 programs” “What the Hell, we don’t have a life as is, What else can we do???” “Tell her to come to mt [my] job n c if I dont’ do enough, this is just dum.” NLRB position: these postings are protected, concerted activity. Discussions of criticisms about job performance are protected.

NLRB Cases Karl Knauz Motors Auto dealer has promotion to show off new cars Salesperson criticizes promotion Salesperson posts picture of Land Rover that rolls into a pond Salesperson is fired NLRB: filed complaint for Protected Activity, but ALJ found no violation.

NLRB Cases Frito-Lay, Inc. Employee asks supervisor to go home early and supervisor responds that it would result in an attendance point against him. Employee decided to stay to avoid negative attendance impact. After shift, employee posts: “It’s a Damn shame when ur own boss don’t even care about ur health. Smh I Damn there had a heart attack on the fukin floor I bet he would let me go home if I was wh*$#% I’m not even goin to say it lmao.” Employee also posts: “Not really just pissed lmao been there almost 5 years and I still get treated like I jus started. I think they are trying to give me a rason to be fired because I’m about a hair away from setting it off in the BITCH. Hahahaha.” NLRB position: not protected, concerted activity. Employee’s comments were “just ranting” on his own behalf.

What Employers Should and Must Do Employers should be proactive in addressing social media. Address the role of social media in your workplace. Follow these 10 simple steps.

What Employers Should and Must Do 1.Alert employees that their communications, postings and/or contributions to social media websites made on employer-owned networks or equipment are not private.

What Employers Should and Must Do 2.Alert employees that their social media use outside of work can have work-related consequences.

What Employers Should and Must Do 3.Encourage employees to report any work- related harassing conduct over social media, even if it occurs during non-working time.

What Employers Should and Must Do 4.If an employer actively monitors employees’ social media participation, notify employees and obtain their authorization or consent. Wiretap Act Stored Communications Act

What Employers Should and Must Do 5.Be wary of accessing or reviewing communications from an employee to an attorney.

What Employers Should and Must Do 6.Notify employees that they should not endorse your company’s product on social media websites without identifying themselves. Federal Trade Commission 2010 regulations

What Employers Should and Must Do 7.Protect information about employers and third parties.

What Employers Should and Must Do 8.Use social media to keep track of former employees.

What Employers Should and Must Do 9.Develop some basic rules. Be civil. Use your instinct. Have a policy, and review it for compliance with the latest guidance from the NLRB Use a disclaimer

What Employers Need to Avoid 10. Be wary of relying on information gathered on social media to make any adverse employment decision. Retaliation and whistle-blowing Off-duty conduct statutes Discrimination Genetic information (avoid gathering)

Title Goes Here Moderator: Scott Brutocao Presented By: Bruce A. Griggs Michael W. Fox Federal Agencies at Work: New EEOC Guidance On Criminal Background Checks and The NLRB’s New Take On Social Media June 29, 2012