An employer can be legally responsible for an employee’s wrongful acts. Negligent hiring is a claim made against an employer based on the premise that an employer knew, or should have known, an employee was likely to behave inappropriately toward other employees.



Criminal history is a routine background check made prior to a hiring decision to avoid negligent hiring. The Society of Human Resource Management (SHRM) surveyed more than 400 of its members and revealed 73% conduct a criminal history of potential employees.



Criminal histories have become common for reasons beyond limiting legal exposure to negligent hiring. Conducting a criminal history is an inexpensive selection device and information is readily available. It is an efffort to decrease workplace violence, reduce theft and embezzlement, and verify application information.



The Equal Employment Opportunity Commission (EEOC) has always scrutinized criminal history checks based on disparate impact. Males, African-Americans and Hispanics are disproportionately represented in the prison population compared with the general population.



EEOC issued guidance on the Consideration of Arrest and Conviction records in employment decisions on April 25, 2012. The guidance took effect immediately. Prior to the guidelines. Pepsi paid over $3 million to settle an EEOC charge of race discrimination for relying on criminal background information.



It’s easy to understand the illegality of disparate treatment which occurs when employers treat criminal history differently for different applicants or employees, based on their race or national origin. However, disparate impact is also illegal and occurs when employers’ background check policy or practice disproportionately negatively impacts individuals in a protected class. The exception is made when the policy or practice is job-related and consistent with business necessity.



Compliance with client requirements or state or local law is unlikely to shield the employer from this guidance. Most states require a criminal background checks for certain occupations including nurses, teachers and caregivers.



Employers need to review their policy and practice to ensure it is aligned with the recent guidance. There are four steps to the process: determine whether a background check can be requested, requesting the background check, considering and using the information and communicating results. The company’s procedure should include all steps and document compliance with their procedure for each individual.



First, in order to request a background check, the employer must determine if it is job-related and consistent with business necessity. For each job title, consider the nature of the job duties, circumstances such as level of supervision and environment. Then the employer needs to describe the information being requested (disclosure) and receive authorization from the applicant or employee prior to the investigation. Should the employer use a third party to acquire the information, the vendor and employer must comply with the Federal Fair Credit Reporting Act and any related State laws.



Considering how to use the results of the investigation is the next step and should be documented. The new guidance strongly recommends employers take into account the nature and gravity of the offense or conduct; the time that has passed; and the nature of the job held or sought.



Next, employers need to conduct an individualized assessment before making a decision that will negatively impact an individual as a result of the background check. The employer must notify those who have been “screened out” due to a criminal conviction. Individuals who are screened out must be given an opportunity to demonstrate why the offense should not be applied due to certain circumstances. The employer should consider the candidate’s additional information before making and communicating a final decision.



Don’t let the new guidance dissuade you from conducting legitimate background checks. Do eliminate policies or practices that automatically exclude people based on criminal records. Do limit inquiries to records that are job-related and consistent with business necessity. Employers need to balance the rights of the applicants and employees with the need to maintain a safe and healthy workplace.

Legislative Update

Quickie Election Invalidated



This rule shortened the period of time for union representation elections. It was issued and became effective April 30, 2012 when the National Labor Relations Board did not have a quorum.



New Protected Class: Unemployed



The District Of Columbia is the first in the nation to enact a law prohibiting employers from disqualifying candidates based on their employment status. The law includes a prohibition of advertisements which disqualify “the
unemployed.”



Donning, Doffing, Walking



Union workers at U.S. Steel in Gary, Indiana argued that they were not being compensated for donning and doffing their protective uniforms, nor were they being paid to walk from the changing room to their job site. The Seventh Circuit stated that changing clothes at the beginning and end of a shift may be excluded from compensation based on the express terms or practice under the terms of a bona fide collective bargaining agreement. U.S. Steel has not included donning and doffing as work time in their agreements.



Since changing clothes was determined to be uncompensated time, travel to their work station was considered to be a normal incident of employment, and also not compensable. Had donning protective garments been a principal work activity, the clock would have begun.



Non-union employers are cautioned that these actions are considered compensable in the absence of a collective bargaining agreement.

Download this newsletter – June 2012 Newsletter