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Title VII and Background Checks
Are your background checks bringing more liability your way instead of limiting your liability?
Imagine being an HR generalist for a company that provides bus service for the general public. One day, it comes to your attention that one of your newly hired employees has a forty-year-old murder conviction. After confirming the information, you speak with your boss who discusses the matter with your company’s attorney. You are then instructed to terminate the new employee based on this information. This actually happened to the Southeastern Pennsylvania Transportation Authority (SEPTA). The former employee was named Douglas El.
El filed suit in federal court complaining that SEPTA had violated Title VII of the Civil Rights Act of 1964. The basis of his claim was that this policy, "-- has a disparate impact on minority applicants because they are more likely than white applicants to have convictions on their records.” The court agreed with SEPTA in that El failed to provide enough expert testimony to support his claim. But the court did specifically state that employers must meet specific conditions if they want to use criminal background checks without violating Title VII.
When establishing a background check policy, the Equal Employment Opportunity Commission (EEOC) has provided a three-step business necessity test. They have asked that employers consider the nature and gravity of the offense, the time that has passed since the conviction and the nature of the job.
Simple Guidelines to Avoid Title VII Issues
- Don’t use anything other than convictions as a reason not to hire a candidate or promote an employee.
- Don’t consider irrelevant case information or types of criminal activity.
- Use shorter cut-off periods in your guidelines. They are much easier to defend.
- Tailor vendor practices to your job-related specifications.
- Comply with The Fair Credit Reporting Act and your state's rules and regulations.
- Don’t have a blanket policy excluding all criminal convictions or activity.
- Avoid terminating individuals who have been employed for long periods of time after finding a current criminal conviction.
These are “hot-button” issues that attorneys look for when discussing employer misconduct with potential clients. If you build your policy around the three-step test, avoid the “hot-button” issues and seek the advice of an employment law attorney, companies can significantly reduce the liability of Title VII violations.
Sincerely,
Jeff Rackler, CEO
KRESS Employment Screening
jrackler@kressinc.com |
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KRESS Allows You to Background Check and Hire with Confidence
We understand that when times are tough, companies normally look for ways to cut costs. While saving a few dollars by eliminating background checks on candidates may seem like a possible short-term solution, the long-term risks outweigh any short-term gains. To keep American business owners doing what they do best - running their businesses with confidence - KRESS has created the Ultimate Buy-Back Program.
If you use KRESS to run a background check on any person and have to lay off that person within twelve months of the
initial background check, we will credit your account the entire amount of the background check.
Learn more about this program. |
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Companies Still Not Running Enough Background Checks on Contractors, Suppliers and Vendors
Despite the near immediate and cost effective access to billions of records, it appears that far too many American companies still do not perform background screens and criminal checks on their contractors, suppliers and vendors.
An unfortunate example of this is a company who recently hired a long-haul truck driver with only two months of experience. During a tight-schedule run, the new driver entered the freeway too quickly, crossed the median and struck another truck head-on, according to eye witnesses. The new driver died in the accident and the driver of the other truck involved sustained multiple injuries. In the subsequent personal injury suit, filed by the driver who was struck, it was found that the company who hired the new driver was indeed at fault for "negligent hiring of an independent contractor." The court also determined that "inexperience might have also been a contributing factor" to the accident.
The company is reported to have settled the claim for $756,231. In other words, the company paid the cost of approximately 18,906 employment background checks.
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