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Criminal background checks: Your own procedures may also be a risk

Jan. 28, 2013

The Equal Employment Opportunity Commission (EEOC) issued new “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, amended…” in April of 2012. Although well-intended, the results have made the employee applicant screening process yet more complex and possibly more problematical for even the most conscientious of fleets.

The EEOC is tasked with assuring that people are not discriminated against based upon race, color, sex, religion or national origin when they apply for a job. The new guidelines note that using a criminal record to deny employment may now have become be a proxy for discrimination based upon race or national origin, and, as such, requires extra levels of care to assure that any conviction data considered during screening is both accurate and relevant.

The commission based their determination upon these finding, which they cite by way of background: “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. After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults). 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…

"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.” 

Fleet Owner recently talked with Lana Batts, co-president of Driver iQ, about the new EEOC guidelines. Driver iQ has been working for the past several months to help fleets understand the practical implications of the revised enforcement guidelines.

“Basically, these new guidelines make convicted criminals a protected class,” Batts said. “For example, you can’t say on a job application that ‘convicted felons need not apply’ anymore. [That may be discriminatory].”

According to Batts, one of the main problems with denying employment to anyone with a criminal conviction is that the online databases which now offer information concerning criminal records can be incomplete, imperfect, out-of date, or misleading. Base your denial of employment on inaccurate or irrelevant information (even used in good faith) and you may have discriminated against someone unfairly and opened your company up to the possibility of penalties or even litigation.

To help guard against this, Batts recommends that, while database searches are a must, it is important that they not be the only part of a criminal background check. “Use database searches wisely and require that your background provider always commit to verifying any potential adverse information that they may reveal,” Batts advised in a whitepaper published by Driver iQ.

According to the new EEOC guidelines, an employer subject to Title VII can also be found liable for discrimination if a plaintiff “demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity.”

To help guard against this, fleets should include only those criminal convictions that are tied specifically to a job in the job description and handle them in the interview and adverse action process. For example, a convicted child sex offender may not necessarily be unsuited to a job as a driver unless that particular job puts him or her in direct contact with minors.

Batts also cautioned fleets to remember that criminal background checks may not go back futher than eight years, and that applicants must be given the opportunity to explain their conviction(s) and make their case for consideration as a job applicant. They cannot simply be taken off the applications list based upon the discovery of what appears to be a recent criminal conviction.

“Lawsuits, class action suits, civil penalties and background investigations are not words carriers want to hear in the same sentence,” the Driver iQ whitepaper notes. So the best advice is to do employee screening right, which means by the book-- the revised book-- every time.  

About the Author

Wendy Leavitt

Wendy Leavitt joined Fleet Owner in 1998 after serving as editor-in-chief of Trucking Technology magazine for four years.

She began her career in the trucking industry at Kenworth Truck Company in Kirkland, WA where she spent 16 years—the first five years as safety and compliance manager in the engineering department and more than a decade as the company’s manager of advertising and public relations. She has also worked as a book editor, guided authors through the self-publishing process and operated her own marketing and public relations business.

Wendy has a Masters Degree in English and Art History from Western Washington University, where, as a graduate student, she also taught writing.  

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