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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on use of arrest and conviction records in employment decisions.
As a result, the new EEOC Enforcement Guidance aims to prohibit employers from using “blanket prohibitions” against hiring anyone with any kind of a criminal records, no matter how old the conviction and no matter what the prior offense may have been. When making employment decisions based on conviction records, employers should take a three (3) factor approach:
More specifically, the Enforcement Guidance provides two circumstances in which an employer’s criminal conviction policy will “consistently meet” Title VII’s “job-related” and consistent with business necessity” defense. According to the EEOC, these circumstances include:
Other defenses for employers to consider involve compliance with federal or state laws that are specific to their business. For instance, the FDIC Act requires banks to conduct criminal background checks on applicants and restricts their ability to hire individuals with certain conviction histories. Under these circumstances, this would be valid defense for claim of discrimination brought by an applicant or employee under title VII.
HR Professional Opinion
With the new EEOC Enforcement Guidance in place, here are some best practice tips and action steps for employers to consider:
Best Practice tips for employers:
Employer Action Steps:
(Univ. of Pa. photo)
On April 26, 2012 a vice dean of the University of Pennsylvania School of Education resigned after questions of his academic background arose. Doug Lynch, a trusted faculty member at the University of Pennsylvania, claims that he has a doctorate. His resume states that he earned his doctorate from Columbia University in 2007, yet Columbia said that he has not yet earned his Ph.D. Additionally, on the Fels institute of Government webpage, Lynch was listed as “Dr. Lynch.”
Prior to quietly resigning following an investigation by the University of Pennsylvania into the authenticity of his claimed doctoral degree, the Philadelphia Inquirer published an article about Lynch being placed on leave. Read more
HR Professional Opinion
Fabricating facts and figures on a resume is fraud – and while it is not necessarily a crime, it is certainly a “misdemeanor offense” in the working world. Resume fabrication commonly includes lying about receiving a degree or certification, exaggerating numbers like GPA and dates worked on a particular project or job, inflating titles, providing a fake address, etc.
Those who get caught not only tarnish their reputation, but bad press is directed towards the organization that hired the individual guilty of fraud. Basically, resume fraud doesn’t look good for anyone, hence the importance of conducting education verifications in a pre-employment background check.
This is not the first time we’ve seen organizations in the limelight for hiring employees with fabricated backgrounds. Remember these?
Over the past five years, the hit rate for criminal background checks has been on the decline as more nonprofit organizations background check their new hires. A recent study’s, data showed that from 2007 to 2011, more than 5.4 million background checks we conducted by nonprofits and 22 percent of those checks resulted in criminal hits.
Of that 22 percent (approximately 479,000), background checks revealed very serious kidnapping, murder, sex-related and drug-related offenses. While it is shocking to know that criminals who have been convicted of kidnapping or molestation could be working amongst children, elders and people in need, we know that criminals go where they know they can get in “under the radar” – organizations [they know] do not conduct background checks.
In organizations working with children, such as the Boys & Girls Clubs of America, background checks are a must; the study found that 1,021 of the criminal hits were registered sex offenders, 603 convictions for kidnapping and 1,176 murder offenses.
What’s more is that between 2007 and 2011, 22 percent of those criminal hits also included 91,607 drug-related offenses including possession and distribution and 10,438 sex-related offenses. These figures are certainly eye-opening, but the good news is that these were hits, and thus these individuals were barred from employment at the nonprofits where they applied to work. Additionally, the number of criminals has declined over the past five years by 7 percent, according to the study.
The drop in criminal hits is attributed by the nonprofits’ use of background screening programs. When criminals know that nonprofits are conducting background checks, they seek employment somewhere else, so it is important for nonprofits to speak with background screening providers in order to mitigate risk, protect their reputations and those they seek to help.
Paula Deen. Photo: AP photo
After celebrity chef Paula Deen refused to pay a former restaurant worker to keep quiet, Lisa Jackson has decided to file a lawsuit against Paula Deen for allegations of sexual harassment and racial discrimination. Paula Deen co-owns the restaurant, Uncle Bubba’s Seafood and Oyster House in Savannah, Ga. with her brother, Bubba Hiers.
Deen is under fire for allegedly sexually harassing and inflicting assault and emotional distress on her employees, using the N-word and creating a hostile working environment. The lawsuit comes after a recent wave of criticism following Deen’s public coming out with her having Type 2 Diabetes.
In one incident, Jackson alleges that Hiers requested that she bring to work pornographic pictures of herself. In her lawsuit, Jackson claims Hiers viewed Internet pornography at the restaurant, drank on the job, made sexually charged comments to her and other staff members, kissed her and spat at her. Jackson, further alleges that both Deen and Hiers frequently made racist comments and used the N-word.
Jackson is seeking unspecified damages.
Photo: AP photo
Imagine you discovered the owner of your child’s daycare center was a convicted felony on such crime as battery, assault, domestic violence, grand theft and even manslaughter. Would this information prompt you to pause or re-consider the daycare center you select?
While you might assume that the state in which you live does a thorough background check on daycare owners and employees, you’ll be surprised to know that only 11 states in the U.S. conduct full background checks on potential daycare workers.
In an investigative report conducted by Dateline’s Chris Hansen, many daycares’ true colors were exposed when the investigative team questioned daycare owner’s criminal histories. In one case, it was revealed that Brighter Beginnings Pre School in Clearwater, Florida owner, Melissa Van Cleave has convictions for battery, domestic violence and a DUI, yet is still able to run her daycare.
Under The U.S. Equal Employment Opportunity Commission (EEOC) guidelines, arrest records should only be used as a bar from employment if pertinent to the position. Child care-related crimes such as sex abuse, battery and manslaughter, for example, could be a bar from employment in the child care industry. Even if your state conducts a background check on a daycare center, it’s important as a parent to ask the right question such as the type of background check conducted, do research, and occasionally visit the daycare unannounced.
Here are some surprising statistics about background checks and child care providers:
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Sources:
http://childcare.about.com/od/childsafe2/a/backgroundcheck.htm
First Contact HR staff answers common questions we get on background checks, drug testing and other HR industry practices. Got a question? Ask us at info at FirstContactHR dot com
Question #8: Should I fire an individual for having a positive drug test result?
Every company has different policies. Some find termination as the only answer for a positive drug screen, as drug use is an immediate breach of company policy. On the other hand, many companies now offer Employee Assistance Programs (EAP), which include drug and alcohol counseling and treatment.
For more questions and answers, visit www.FirstContactHR.com and just Ask!
Most often the First Contact HR blog reports on trends, topics and news relating to background screening and other human resource practices for businesses. However, the need to background screen is not only pertinent to companies seeking to screen employees and applicants, but also to individuals and families seeking to hire a responsible person to provide part-time or full-time services such as childcare, elder care or home-cleaning services.
The need to hire responsible childcare providers is on the rise as the economy continues to rebound and parents find themselves once again gainfully employed. The decision to hire a qualified individual to watch over children while parents and or guardians are absent is one that should not be taken lightly.
The need to screen the individual who will provide childcare to minors is very important and highly recommended. Only two months into the year 2012, and the U.S. has already seen a high number of breaking news stories dealing with unfortunate incidents involving babysitters.
Here are some recent headlines and stories:
Montco Man Charged With Molesting Girl While Advertising Online As Babysitter
After advertising for babysitting jobs, a local man is accused of molesting a child he was supposed to be caring for. We are now learning our reporting is prompting a major online investigation. Read more
Babysitter sentenced to 40 years in prison for toddler’s death
A Springfield woman convicted of murdering an 18-month-old boy for whom she was babysitting was sentenced Tuesday to 40 years in prison. Read more
Babysitter sentenced to 10 years for shaking baby
Washington state woman, who admitted to violently shaking a baby left in her care, received the maximum sentence of 10 years. “She murdered who my child was supposed to be,” said the child’s mother, Jaime Thompson. Read more
Babysitter pleads not guilty to murder
The 28-year-old Hardin County babysitter who police say beat to death the little girl she was caring for answered to her upgraded charges. Ashley Chapman pled not guilty to murder Tuesday morning. Read more
So what can parents do to protect their children and ensure that those they interview or even find online are trustworthy? Certainly, you can start by hiring a reputable firm to perform a background check on the individual.
Here are some things to keep in mind when performing a babysitter background check:
With sites like Sittercity.com and Care.com, it’s impossible to know the full history of an individual you find online – even after the interview process. Let a background screening and human resource consulting firm help you be certain that you’ve hired the right person to childcare to precious members of your family.
In a response to a lack of communication during the online application process, the National Law Forum reports that an increasing number of job seekers are suing employers who are in violation of the Fair Credit Reporting Act (FCRA).
In a recent class action lawsuit against K-Mart, prosecutors say that the online applications that they filled out for positions at K-Mart are in violation of the FCRA. The retailer allegedly utilizes buttons on their online applications that either say “decline” or “accept.” These buttons are the only means offered by K-Mart to obtain an applicant’s consent to submit to a background. Apparently, this simple button click is not the correct way to obtain a background check authorization from an applicant.
According to the Fair Credit Reporting Act, in order to provide full disclosure to a job applicant:
a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
The simplicity of a “decline” or “accept” button does not constitute a written authorization, prosecutors say. Employers who utilize online job applications argue that under the Electronic Signatures in Global and National Commerce Act (E-Sign), electronically authorizing background checks are permitted. However, E-sign only applies to consumers or customers, not job applicants.
HR Professional Opinion:
(The comments below are part of First Contact HR’s opinion column where we offer the writer’s opinion on this post’s specific topic and thus should not be taken as legal advice.)
While it is certainly okay to obtain a background check authorization from an online job application, it is important to keep in mind that the authorization must:
Regarding the K-Mart matter, it appears the company failed to satisfy the FCRA requirement stated above by requesting applicants merely to click a mouse button labeled “accept” or “decline.”
Although an electronic signature may prove to be a legally valid authorization to conduct a background check (under the FCRA), job applicants may be reluctant to accept the electronically-signed authorization and may require an actual hardcopy signature. To be safe, it might be prudent to stick with hardcopy signatures that are stored electronically with respect to background check authorizations.
First Contact HR staff answers common questions we get on background checks, drug testing and other HR industry practices. Got a question? Ask us at info@FirstContactHR.com
Question #7: What is a Chain of Custody and why is it Important?
This is the detailed documentation of the drug screening process, which accounts for the integrity of each step of the procedure, by tracking the handling and storage of the specimen from collection to disposal.
This multi-part medical document, with assigned barcode numbers, facilitates the process and documents by whom, when and for what purpose the specimen was handled. Clinical labs will not proceed with a drug screen if they recognize the chain of custody has been broken. With a fully executed Chain of Custody, the drug screen result is completely and legally defensible.
For more questions and answers, visit www.FirstContactHR.com and just Ask!