What EEOC Wants You To Know About Using Criminal Records In Employment Decisions

The EEOC has issued a new guidance about how the use of criminal records in making employment decisions might be illegal discrimination. Why might using criminal records result in discrimination? EEOC says this about racial disparity and criminal records:

In the last twenty years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system and, concomitantly, a major increase in the number of people with criminal records in the working-age population. In 1991, only 1.8% of the adult population had served time in prison. . . . By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail. The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.

Arrest and incarceration rates are particularly high for African American and Hispanic men. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men. 

EEOC cites problems such as inaccuracies, obtaining expunged records, that an arrest doesn’t mean guilt, and other severe problems that arise with the use of criminal records for employment decisions, yet they say 92% of all employers are using criminal background checks on some or all employees.

Here are just some of the ways using criminal records might constitute illegal discrimination:

Disparate treatment: If two people with similar criminal backgrounds apply for the same job and one is not interviewed, or is not hired, then EEOC can look at the race and national origin of the two applicants. If the employer is giving whites the benefit of the doubt but excluding blacks or Hispanics, as an example, this would be disparate treatment. If you are excluded from a job or terminated due to a criminal background, look around. If others of a different race or national origin with similar histories are hired or still employed, you might have a discrimination case.

Disparate impact: If the employer excludes everyone with a criminal background, that doesn’t mean they escape liability for discrimination. Because of the huge disparities among races in criminal records, even a decision that seems racially neutral might have an illegal impact. EEOC cites to Title VII, which says, “An unlawful employment practice based on disparate impact is established . . . if a complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. . . .”

Arrest records: Because an arrest does not mean you’re guilty, use of an arrest record standing alone may not be used to deny an employment opportunity. However, the employer may make an inquiry as to whether the underlying conduct involved makes you unfit for employment. The EEOC gives, as an example, a principal who is arrested for sexual misconduct involving a minor. The employer may suspend him pending an investigation and interview witnesses and examine evidence to determine whether the evidence supports the charge. Because the conduct relates to his fitness to perform his duty, the employer may determine his version of events is not credible and terminate him. What the employer can’t do is consider any arrest as evidence of untrustworthiness and fire all employees arrested for any reason.

Convictions: Convictions are certainly evidence that you were guilty of a crime. However, EEOC requires that any inquiry about convictions be limited to “convictions for which exclusion would be job related for the position in question and consistent with business necessity.” In general, the factors the employer should consider are the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct and/or completion of the sentence; and the nature of the job held or sought (called the Green factors). EEOC says the employer may use criminal convictions if:

a. “The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible);” or

b. “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.” 

Individualized assessment: In order to meet the second test for using convictions, the employer must give an opportunity for an individualized assessment of people excluded by the screen. the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity. This means they have to tell you that you may be excluded because of past criminal conduct, give you an opportunity to show the exclusion doesn’t properly apply to you, and then consider whether your additional information shows that excluding you would not be job related and consistent with business necessity.

Relevant information: Once the employer contacts you, some information they should consider if you present it are the facts and circumstances surrounding the offense, the number of convictions, older age either at the time of conviction or release from prison, evidence that you’ve performed the same type of work post-conviction with similar or the same employer with no additional criminal conduct, the length of your employment history before and after the offense, rehabilitation efforts such as education and training, character and other evidence regarding fitness for the particular position, and whether you are bonded. If you don’t respond, the employer can make its decision with the information it has. That means you should respond quickly and completely if you want a chance at the job.

Less discriminatory alternative: Even if the employer can show a business necessity and that excluding you because of your record may be job related, you might still be able to prove discrimination if you can show a less discriminatory alternative to the exclusion that serves the employer’s goals equally well.

Industries with restrictions: If the industry you’re applying for prohibits hiring or retaining employees with certain criminal convictions, then the employer may comply with the law, but if they impose any stricter exclusion they are still subject to potential discrimination claims.

Best Practices For Employers

EEOC’s recommendations are that employers review their practices to make sure they aren’t engaging in illegal discrimination. They suggest the following best practices for employers:

• Eliminate policies or practices that exclude people from employment based on any criminal record. • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination. 
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. 
• Identify essential job requirements and the actual circumstances under which the jobs are performed.
• Determine the specific offenses that may demonstrate unfitness for performing such jobs. 
• Identify the criminal offenses based on all available evidence. 
• Determine the duration of exclusions for criminal conduct based on all available evidence. 
• Include an individualized assessment. 
• Record the justification for the policy and procedures. 
• Note and keep a record of consultations and research considered in crafting the policy and procedures. 
• Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII. 
• 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. 
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended. 

If you think an employer or potential employer has discriminated against you based upon your criminal record, contact an employment attorney in your state to discuss your rights and options.

What the U.S. Chamber Of Commerce Doesn't Want You to Know About Your Workplace Rights

The National Labor Relations Board says almost all private employers must put up a poster informing you of your workplace rights under the National Labor Relations Act as of April 30, 2012. It’s free. Employers can download it online and print it out. So they all put up their posters, or are working on it now, right? Nosiree.

They sued. At least, they got together under the umbrella of the U.S. Chamber of Commerce to sue. They got a temporary injunction in the DC federal courts to stop the rule. They really, really don’t want you to see this poster. It must really be subversive, huh?

Well, see for yourself. Here’s exactly what the U.S. Chamber of Commerce doesn’t want you to know about your workplace rights:

Employee Rights Under the National Labor Relations Act

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA.


Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten or coerce you in order to gain your support for the union.

Wow. That’s it, you say? What’s the BFD? Well, I think it’s mostly these provisions big employer doesn’t want you to see:

Discussing wages and benefits with coworkers: The poster says, “Under the NLRA, you have the right to discuss your wages and benefits and other terms and conditions of employment . . . with your co-workers or a union.” Yet many employers take desperate measures to make sure you don’t know what coworkers are making and what benefits they have. Some put out written policies or put restrictions in contracts. That’s flat-out illegal. If you have a contract or if your employer has a policy saying you can’t discuss wages and benefits with coworkers, you can file a Charge Against Employer with NLRB right now. The other part they don’t want you to know about here is your right to grouse about working conditions with coworkers. You can grumble and complain during breaks, on Facebook, in Twitter, as long as you’re doing it with coworkers and they can’t fire or discipline you for it.

Discussing work-related complaints and working conditions with coworkers: The poster says, “Under the NLRA, you have the right to take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.” If you complain about conditions on your own and on behalf of yourself, you aren’t protected. But you have the absolute right (assuming you aren’t a supervisor) to complain about working conditions on behalf of coworkers, to get together with coworkers to discuss and complain, and to get together to try to negotiate better working conditions. That is huge.

Employers like to crack down on employees who complain. They want to create an atmosphere where employees shut up and accept things as they are. Most of the time, it’s best to keep your mouth shut. But sometimes, you have to speak up. If working conditions are intolerable, if it feels like a prison, if you are being paid unfairly, if there’s a bully in the workplace, sometimes you have to speak up. You probably have the right to do so, as long as you aren’t a supervisor, and as long as you’re not alone.

Employment Law Blog Carnival Mother’s Day Edition

This month’s Employment Law Blog Carnival has lots of posts with great career tips - so good, your mother might give them to you. Although Mother’s Day has passed, it’s never too late to take guidance from mom.

Here’s the best employment law advice a mother can give, in the best employment law blogs a mother could want.  

Don’t Talk To Strangers

Instead of going on reality shows to meet strangers in a misguided attempt to find love, you meet the best mates doing what you enjoy. In Jon Hyman’s post, The Bachelor as discrimination? Publicity stunt lawsuit undermines legitimate discrimination claims, things didn’t go so well looking for love in all the wrong places. If only they’d listened to mom . . .  

Behave Yourself

If you didn’t behave as well as mom wanted (or if your employees didn’t), you might want to read Daniel Schwartz’s post, EEOC Releases Important Guidance on Use of Criminal and Arrest Records By Employers and John Holmquist's post, Asking the question: the EEOC's enforcement guidance on arrests and convictions.

Don’t Make Rude Gestures

Adam Whitney’s post, You’re Damned if You Fire an Employee Who Gives You the Finger tells you what you can (and can’t) do with an employee who loses a finger or flips you the bird.

Work Out Your Problems

John Fullerton's post, FINRA Rule 13803: Compelling Arbitration Claims to be Filed in Court, tells about yet another way employers and employees may work out problems.

If You Can't Say Anything Nice, Don't Say Anything

Ari Rosenstein and Eric Meyer talk about the downsides of social media in Social Media: Useful Tool or Employment Pitfall? and Report: Employees share WAY more Facebook info than they think
If only the people in their posts had listened to Mom.

Study Hard

Sometimes, no matter how hard you study, you won't do well. That's because there's something wrong with the test. In Jacksonville Firefighter Litigation Shows Perils of Using Improperly Validated Tests, George Leonard tells how one test went terribly wrong, and advises employers how to make sure promotion and hiring tests won't be thrown out.

A great example of someone who should have studied harder is in Mark Toth's How to Hire If You Want to Get Fired. Learn what not to do when interviewing candidates in a hilarious what-not-to-do video. Personally, I hope you all interview like this. It will make my job on the employee side way easier.

Mind Your Own Business

Philip Miles and Jessica Miller-Merrill tell us about legislation to keep employers from snooping into employee's passwords in SNOPA - Proposed Federal Legislation on Employer Social Networking Password Requests and US Bill Would Make Employer Requests for Facebook Access Illegal.
MYOB, nosy employers.  

In Reviewing Private Social Media Accounts as a Candidate Screening Tool: Dangerous, even with Policies & Procedures, Shaun Reid warns of the dangers of not listening to mom's good advice about snooping.

Family Is The Most Important Thing

In 6 Steps to Avoid Family Responsibilities Discrimination Claims, Dawn Lomer advises employers how to avoid getting in trouble when employees put family first.

Don't Lie

Mom's advice is particularly good when your lie ruins things for everyone else. If you lie about your need for Family and Medical Leave, you make it harder for everyone who really needs it.  Robin Shea does a terrific analysis of when an employer can fire an employee for lying about FMLA leave in When can an employer fire an employee for medical leave fraud?

Don't Hit

Mom would not be proud of all the boss-directed violence in the game I talk about in my post, Top Reasons Why Kick The Boss Is One of the Top Apps. Or maybe she'd be glad you have an outlet instead of violence.

90% of Life is Showing Up

Okay, that wasn't mom, it was Woody Allen. But as a mom, I tell my kids this all the time. Randy Enochs tells us about the importance of showing up to work, even with a disability, in 9th Circuit Discusses "Attendance" as Essential Function of Job in ADA Claim. [Note to faithful readers - no, you aren't hallucinating. This is a late edition to the ELBC, but a very worthwhile one. Mom would say, "Better late than never." I'm glad Randy decided to show up at ELBC!]


Be an Overachiever

I saved Robert Fitzpatrick for last because he definitely did mom proud this week. He asked me to post three of his posts in ELBC. Bob, you're putting us all to shame. Here they are:

(1) Proposed FederalLegislation to Prohibit Employers from Requiring or Requesting Access to SocialMedia of Employees or Applicants

(2) No Settlement Negotiations Privilege

(3) USERRA and the Escalator Principle

There you have it: all my favorite employment law bloggers in one handy spot. If you read them all, not only will mom be pleased you did your homework, but you'll come away with lots of useful knowledge (unlike when I studied the law against perpetuities).

From everyone here at the Employment Law Blog Carnival, here's hoping you had a wonderful and happy Mother's Day! If you follow all the tips and advice in these blogs, you'll spend way less time in court and have more time to spend with mom.

Top Reasons Why Kick The Boss Is One of the Top Apps

My 13-year-old thought I’d want to know about a hot free app available for my iPhone: Kick the Boss. Knowing what I know about the current state of employment law, is it any wonder that an app allowing you to kick, punch, burn, stab, and flick your boss until he’s gone, and rewarding you with more powers each time you inflict pain on him is one of the most popular games in America?

No doubt about it: the hostility between worker and employer is growing by leaps and bounds. Employers consider employees disposable and treat them like the enemy. Employees no longer think of their jobs as the place they’ll work for life. They know that isn’t going to happen.

If you’re a boss who is surprised at this level of hostility, just think about what’s been going on. No wonder your employees want to kick you around in the virtual world. For employees, here are just some of the reasons why you may want to set your boss on virtual fire.

 Facebook passwords: Some companies are demanding Facebook passwords from applicants and employees. There’s no sense of any entitlement to privacy in the corporate world. They want to read your posts and even your private messages.  

Reading email: Companies read your emails if you access them at work. Some even use keylogging software to get your passwords and access your most intimate conversations. Use your work computer or work phone to check your messages? Forget privacy. Think front page of the company newsletter.  

Criminalization of employment: Employers are coming after employees and former employers with criminal charges, because ruining you financially just isn’t enough anymore. They want your freedom. It’s one thing if an employee stole or embezzled. But these new cases are meant to intimidate employees who leave and work for competitors. The Computer Fraud and Abuse Act and trade secrets theft are some of the ways employers are trying to criminalize employment law. If employers have their way, they’ll be able to toss you in jail if you quit. Give it another 10 years and maybe the’ll get their way.  

At-will firing: Recent cases have shown employees getting fired or disciplined after donating a kidney for their boss, because the employer didn’t like the color of employee shirts, because the employee expressed an unpopular opinion on their own time, and for teaching about discrimination. The fact that your employer can fire you because she woke up in a bad mood or got a terrible cup of coffee adds to the hostility you might be feeling about your work.  

Pensions and benefits: Employers are curtailing and playing with benefits. Pension plans get cut or eliminated; health insurance goes to the cheapest plan or is cut. When you’re fired, you lose your health insurance because we’re one of the only industrialized Western countries that ties health insurance to work.  

No free speech: You can be fired for criticizing your boss, complaining about ethics and unprofessionalism, reporting a coworker for embezzlement, and for saying anything your boss doesn’t like about politics or world affairs. Zip it if you want to keep your job.  

Unemployment discrimination: They can refuse to hire you in most states due to the fact that you’re unemployed. Quit? Good luck finding something out there.  

Credit discrimination: Lose your job and get bad credit as a result? Corporate America doesn’t want you anymore. They think if you’re poor you’ll steal from them. They don’t realize you might work harder if you really need the work.

I say go ahead and kick your boss, virtually, that is. It’s good to get out a little bit of frustration, and beats the heck out of going to jail because you took a real 2x4 up against his head. If you’re thinking about beating up the boss, please don’t.

If you’re so frustrated you are thinking about doing real violence, get the heck out of there. Start looking while you still have a job. The jerk isn’t worth your freedom.

Donate A Kidney To Your Boss? That’s A Firing

Debbie Stevens, gave her kidney to a man on the donor list so her boss could secure a match. Was she rewarded? Promoted. Nope. This is corporate America. You can be fired even if you literally give a piece of yourself for your job.

 Instead of rewarding her, the boss started pressuring her to come back to work even though she didn’t feel well and was still recovering. Once she got back, they took away her overtime, demoted her, and transferred her 50 miles from her home. She hired a lawyer to try to resolve the matter. The lawyer wrote a letter, and she was fired.

 I know I’ve talked about at-will employment and being able to legally fire employees for any reason or no reason at all. Does that mean you can be fired after you donate your kidney to your boss? Not necessarily. Here are just some of the claims she might have:  

Discrimination: If the employer failed to accommodate her recovery and then retaliated when she needed extended time off, she might have a claim under the Americans With Disabilities Act. Under that law, the employer must grant a reasonable accommodation, including extended leave, unless it can show an undue hardship. Retaliating against her after her return with a pay cut, demotion and transfer would also likely be a violation.  

Family and Medical Leave: If she was out for 12 weeks or less, then she’s likely entitled to recover under the Family and Medical Leave Act, which requires that she be restored to the same or an equivalent position once she returns from leave. Unless there were substantial cutbacks while she was gone, they’ll have a hard time arguing the position was equivalent. Even a distant transfer without a demotion is probably not considered equivalent. If she was out 12 weeks and one day or more, she’s probably out of luck on FMLA claims.  

Fraud: Did the boss promise continued employment or even favoritism if she gave of herself? Maybe. If that happened, she might claim fraud.  

Breach of contract: If the boss offered her anything specific, such as continued employment or a promotion, in exchange for the transplant, there might be a breach of contract claim. Although contracts in exchange for body parts may well be against public policy and unenforceable.

Personally, I think the courts should allow her to repossess. But since the recipient wasn’t involved in all this, she’s probably out of luck with that. In a perfect world, the court would have the power to make the company find her a replacement kidney to make her whole.

This isn’t even the worst firing I’ve ever heard of, but it’s up there. The employer should be ashamed, but I’m sure they’ll fall back on the old canard of at-will employment.

 To borrow from Joseph Welch (a victim of McCarthyism), I have to ask the employer what I hope the jury will ask: At long last, have you left no sense of decency?