Pitfalls to Avoid

1. Pitfalls to Avoid Background Checks Terminations Chris Gantt-Sorenson Haynsworth, Sinkler, Boyd This presentation is not intended as legal advice for a specific situation or fact scenario.

2. TERMINATION: Tips on Preventing Discrimination Charges This presentation is not intended as legal advice for a specific situation or fact scenario.

3. Overview • Prevention • Policies • Effective Reporting Mechanism • Training • Personnel File • Investigation This presentation is not intended as legal advice for a specific situation or fact scenario.

4. Prevention: EEOC’s Suggestions Take ALL steps necessary to prevent harassment and discrimination from occurring ● raise subject affirmatively ● express strong disapproval ● develop AND apply appropriate sanctions ● inform employees of their right to raise and how to raise issue of harassment and discrimination This presentation is not intended as legal advice for a specific situation or fact scenario.

5. Effective Preventive Program • Explicit policy against harassment and discrimination • Must define harassment and discrimination • Must contain 2 or more reports for employees • Must not have a stronger false report provision that it does an anti-retaliation • Should be designed to encourage employees to come forward This presentation is not intended as legal advice for a specific situation or fact scenario.

6. Prevention: Policy • Post, distribute, and maintain policy • Use easy to understand language – English? Maybe others as well… • Give the policy to all employees & have them sign it • Remember to distribute to new employees and have them sign an acknowledgement statement! This presentation is not intended as legal advice for a specific situation or fact scenario.

7. Prevention: Training • Provide training sessions for employees and management – tailor to audience • Conduct annual refresher courses • Advise employees that harassing or discriminatory conduct in any form will not be tolerated • Promptly investigate any and all claims of offensive or harassing conduct • Monitor the workplace to be sure supervisors and managers are following policies as written This presentation is not intended as legal advice for a specific situation or fact scenario.

8. Personnel File – can help or hurt • Makes all the difference in employee’s post employment allegations of wrongful termination, harassment and discrimination • No personnel file documentation means none of the performance/attendance/behavior issues occurred to the EEOC or the Court This presentation is not intended as legal advice for a specific situation or fact scenario.

9. Personnel File • Incidences of Performance, Attendance, Behavior • Involve HR • Must be discussed with Employee • Documentation without discussing with Employee is not as helpful to the Employee or to legal defense This presentation is not intended as legal advice for a specific situation or fact scenario.

10. Personnel File • Document incident • Date and Signed by Attorney • Details of occurrence • Action taken • Employee either counseled or, if problem continues, written up • Do not try to do this retroactively This presentation is not intended as legal advice for a specific situation or fact scenario.

11. Personnel File • Date • Describe issue • Meet with Employee (and HR) • If verbal counseling, what was discussed with employee • Signed by Attorney and HR This presentation is not intended as legal advice for a specific situation or fact scenario.

12. Personnel File • Date/ Describe issue • Succinct guidance about improvement expected • Meet with Employee • Include HR (need a witness always) • Signed by Attorney and HR • ask Employee to sign • OK if employee refuses or wants to write side of story on back This presentation is not intended as legal advice for a specific situation or fact scenario.

13. Personnel File • Be Honest • Why not? • Far angrier if not given notice or chance to improve, and surprised by termination • Provides the Employee opportunity to improve and grow • Feedback vs. never knowing what went wrong • Which would you choose? • What is fair to the Employee? This presentation is not intended as legal advice for a specific situation or fact scenario.

14. Personnel File • Performance Based Termination • Tedious • Numerous counseling sessions • Verbal and/or written warnings • Memorandums to file • Easier to blame it on RIF, job elimination, attendance or rule violations • Honesty goes a long way to avoid litigation • Allow Employees to respond This presentation is not intended as legal advice for a specific situation or fact scenario.

15. Personnel File • Maintain confidentiality as to employee discipline • To avoid defamation suits, employees should never be reprimanded or terminated in front of third parties. • Performance communicated quietly, politely, and in the strictest of confidence. • Details should be written down and placed in the employee's personnel file. This presentation is not intended as legal advice for a specific situation or fact scenario.

16. Personnel File • Treat employees with dignity • Always involve HR • HR must document personnel file and will have to move forward with discipline shortly after event This presentation is not intended as legal advice for a specific situation or fact scenario.

17. Investigation • Must have it completed within 1 to 4 days • Employer liable for failing to remedy or investigate promptly • Employer liable for failing to take proper corrective or discipline action against alleged offender • Once on notice of an offender, failure to discipline could result in exorbitant punitive damages for second claim This presentation is not intended as legal advice for a specific situation or fact scenario.

18. Investigation • Receipt of Complaint • Designate who will perform investigation • Human Resources • Also need a witness who will be present during interviews to take notes of all that is said • Outsource? • Sensitive situations (high level management) • Do not have HR • Insure that no retaliatory actions or changes occur in regards to victim This presentation is not intended as legal advice for a specific situation or fact scenario.

19. Investigation • Investigate Promptly (1 to 4 days) • Statements of victim, alleged offender and witnesses dated and signed • Summary of what was done to investigate and results • Advise victim of outcome of investigation regardless of outcome • Take immediate and appropriate corrective action • Follow up to ensure victim has not suffered retaliation and advise victim to contact HR if any issues This presentation is not intended as legal advice for a specific situation or fact scenario.

20. Background Investigations This presentation is not intended as legal advice for a specific situation or fact scenario.

21. EEOC Report - April 25, 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 This presentation is not intended as legal advice for a specific situation or fact scenario.

22. Overview • Does not create new law or regulation • National data supports finding that criminal records exclusions have a disparate impact on race and national origin • Guidance on how use of arrest records can be discriminatory • Blanket Prohibition of employees with criminal record is discriminatory • Guidance will be used by EEOC staff who investigate charges of discrimination applicable to an employer’s use of criminal history records This presentation is not intended as legal advice for a specific situation or fact scenario.

23. Arrest v. Conviction • Exclusion of employment based on arrest “in and of itself, is not job related and consistent with business necessity.” • Arrest does not mean criminal conduct occurred • Arrests do not indicate final disposition (acquitted) • Conviction sufficient to assume applicant engaged in the underlying conduct. • Some exceptions • Errors, outdated or incomplete records (how would we know?) This presentation is not intended as legal advice for a specific situation or fact scenario.

24. Exception to use of Arrest • An employer may make an employment decision based on conduct underlying arrest if the conduct makes the individual unfit for the job. • Conduct, and not the arrest, is relevant • Ex. School principal arrested for several counts of endangering welfare of children • School’s action in suspending to investigate, and then terminating after, is linked to conduct that is relevant to the job *stakes are higher with school children and sex offender This presentation is not intended as legal advice for a specific situation or fact scenario.

25. Records could be incomplete • 92% of employers do criminal background checks • 50% of arrests on FBI database have no final disposition • Arrests or convictions applicable to Court’s seal and expunge orders are sometimes not purged by private companies • Records can be wrong due to misspellings, clerical errors or inaccurate information when data input • Consumer Reporting Agencies are prohibited from reporting records of arrests that did not result in entry of conviction when arrest occurred more than 7 years ago This presentation is not intended as legal advice for a specific situation or fact scenario.

26. Discrimination • Disparate treatment • Using arrest records inconsistently among classes • Disparate impact • Neutral policy or practice that disproportionately impacts a particular group/protected class • Disproportionately excludes people of a particular race • Criminal background policy that results in greater number of African Americans or Hispanics is red flag This presentation is not intended as legal advice for a specific situation or fact scenario.

27. Examples of Policies in Report • Policies excluding anyone with other than minor traffic offense • Violent crime convictions for Paratransit driver • Second degree murder • 40 years lapsed • 15 years when crime occurred • Expert testifying about recidivism and lapse of time might have caused court to deny summary judgment to employer This presentation is not intended as legal advice for a specific situation or fact scenario.

28. What the EEOC considers persuasive in an employer’s defense to this type of a Charge of Discrimination • Racially balanced workforce will not overcome disparate impact • Employer’s applicant data will be considered • Local arrest information may be used to show African American and Hispanic men are not arrested or convicted at a disproportionate rate • Employer’s reputation in the community for excluding individuals with criminal records • Did application process reflect the actual potential applicant pool? • Were applicants reluctant to apply because of discriminatory practices? This presentation is not intended as legal advice for a specific situation or fact scenario.

29. Job Related and Consistent with Business Necessity • Employer’s burden is to show the policy or practice is one that bears a demonstrable relationship to successful performance of the jobs for which it was used • Measure the job for the person and not the person in the abstract • Exclusionary policy must be necessary to safe and efficient job performance • This standard is the one the EEOC will use in investigation of arrest record to deny employment • Articulate how the job relates to the conviction This presentation is not intended as legal advice for a specific situation or fact scenario.

30. Job Related and Consistent with Business Necessity • Criminal conduct linked to dangers and risks inherent in the duties of a particular position • Targeted exclusions for particular positions • Tight nexus to position in question required • Not always required to be individualized assessment • Less discriminatory alternative practice than one used This presentation is not intended as legal advice for a specific situation or fact scenario.

31. EEOC’s 2 safe bets • These two approaches will “consistently meet job related and consistent with business necessity” • Employer relies on Uniform Guidelines of Employee Selection Procedures • Employer considers the Green factors (8th Circuit case law) • Nature of crime • Time elapsed • Nature of job This presentation is not intended as legal advice for a specific situation or fact scenario.

32. Uniform Guidelines • Three approaches to validating employment screens • 29 C.F.R. §1607.1 • Single set of principles for the proper use of tests and selection procedures as a basis for making employment decisions • Used by the EEOC in the enforcement of Title VII • Free to Human Resource Professionals • www.uniformguidelines.com This presentation is not intended as legal advice for a specific situation or fact scenario.

33. Green Factors • Nature and Gravity of Offense • Harm caused by crime • Elements of crime • Felonies may be more serious than misdemeanors • Time Lapsed Since Crime • Employer policy states duration of conduct • Permanent exclusions void • Studies of risk of recidivism should be consulted • Nature of Job Held or Sought • Job title and duties • Level of supervision • Location (private home or warehouse) This presentation is not intended as legal advice for a specific situation or fact scenario.

34. Individualized Assessments • Informs individual that he may be excluded because of past conduct • Give him an opportunity to explain why the exclusion does not apply to him • Factors • Facts and circumstances surrounding offense or conduct • Number of offenses • Older age at time of release from prison • Evidence that individual performed same type of work without incident • Length and consistency of employment history before conduct This presentation is not intended as legal advice for a specific situation or fact scenario.

35. Individualized Assessment (cont.) • Factors (cont.) • Rehabilitation efforts • Employment or character references • Whether the individual is bonded • If individual does not respond to employer’s attempt to gather information, the employer may make its employment decision without the information. This presentation is not intended as legal advice for a specific situation or fact scenario.

36. Miscellaneous • Compliance with other federal laws and regulations that conflict with Title VII is a defense • Federal laws prohibiting employment of individuals with specific convictions in certain industries in public and private sector • Bank employees • Port workers • Federal agencies or facilities • Occupational Licenses and Registrations • Federal Security Clearance • OPM rules – crimes involving dishonesty for 3 years • Can apply for waiver with institution (ex. FDIC) *not preempted by Title VII This presentation is not intended as legal advice for a specific situation or fact scenario.

37. Miscellaneous • State and local laws are preempted by Title VII if they are read to prevent anything prohibited by Title VII • Policy must still be job related and consistent with business necessity This presentation is not intended as legal advice for a specific situation or fact scenario.

38. Employer Best Practices • Eliminate policies that exclude employment due to criminal record • Train hiring personnel, managers and decision makers about prohibition on discrimination • Policy • Narrowly tailored • Essential job requirements and actual circumstances under which job is performed • Determine specific offenses that may demonstrate unfitness for specific jobs • Determine duration of exclusions • Individual assessment This presentation is not intended as legal advice for a specific situation or fact scenario.

39. Best Practice cont. • Policy (cont.) • Record justification for policy and what references were consulted • Questions about Criminal Records • Limit inquiries to records related to position in question and consistent with business necessity • Have you been convicted of any crimes of dishonesty? • Keep information learned confidential and only use for purpose it was intended • Do not ask on application This presentation is not intended as legal advice for a specific situation or fact scenario.

40. Thank you Chris Gantt-Sorenson csorenson@hsblawfirm.com 864.240.3282 This presentation is not intended as legal advice for a specific situation or fact scenario.