BACKGROUND CHECKS

Background Screening

Title VII

Fair Credit Reporting Act

National Labor Relations Act

EEOC’S STRATEGIC ENFORCEMENT PLAN

• FY 2013 to 2016

• Eliminate barriers

• Using investigations and litigation

• Target class based intentional and facially neutral

• Hiring and recruiting practices• Adversely impact particular groups

EEOC’S STRATEGIC ENFORCEMENT PLAN

• Exclusionary policies and practices

• Channeling into specific jobs

• Restrictive application processes

• The use of screening tools:

• Pre-employment testing

• Background checks

EEOC’S STRATEGIC ENFORCEMENT PLAN

NATIONAL LABOR RELATIONS BOARD

National Labor Relations Act

Employees shall have the right to self-organization . . . and to engage in other concerted activities for the purpose of . . . other mutual aid or protection

It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7

CONSUMER FINANCIAL PROTECTION BUREAU

• Fair Credit Reporting Act

• Took over enforcement from the Federal Trade Commission in January 2013

• Semiannual reporting – no sign of enforcement activity

CONSUMER FINANCIAL PROTECTION BUREAU: Consumer Report

Any communication . . . any information by a consumer reporting agency bearing on a person’s:

• Credit

• Character

• General reputation

• Personal characteristics

• Mode of living

For employment purposes!

CONSUMER FINANCIAL PROTECTION BUREAU: Not A Consumer Report

• Polygraph report

• Drug test

• Breathalyzer test

Communications for the purpose of employee recruiting

Communications involving the investigation of employee misconduct

CONSUMER FINANCIAL PROTECTION BUREAU: Not A Consumer Report

Anyone who receives money

&

“Regularly” assembles or evaluates consumer reports

&

Furnishes those reports to third parties

CONSUMER FINANCIAL PROTECTION BUREAU: Consumer Reporting Agency

Mad Men Season 6, Episode 11

1. Pete Campbell is concerned about an up and comer Bob Benson

2. Pete Campbell hires Duck Phillips to look in Bob Benson

3. Duck worked with Pete, Duck is now a recruiter

Does the FRCA Apply?

CONSUMER FINANCIAL PROTECTION BUREAU: Putting It Together

CONSUMER FINANCIAL PROTECTION BUREAU: Putting It Together (video)

CONSUMER FINANCIAL PROTECTION BUREAU: Compliance

Prior to asking for a report, employer must:

1. Disclosure

2. Authorization

Certification to Consumer Reporting Agency:

3. The above has been complied with, and

4. The information is for employment purposes

CONSUMER FINANCIAL PROTECTION BUREAU: Compliance

Pre-Adverse Action

1. Notice of what action will be

2. Give consumer report and Notice of Rights

Post-Adverse Action

3. Notice of action taken

4. Contact info for the Consumer Reporting Agency

5. Consumer Reporting Agency had not voice in the decision

6. How to get a free copy

7. Right to dispute

EEOC: StatsEnforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions

Incarcerated0%

5%

10%

15%

20%

25%

30%

35%

WhiteHispanicBlack

EEOC: Concerns

Disparate Treatment -- Intentional

Disparate Impact -- Unintentional

EEOC: Disparate Impact

Griggs v. Duke Power

EEOC: Disparate Impact

Business Necessity – how hard to prove

Excerpts for appellate court opinions:

1. Related to job performance

2. Not business convenience test

3. Irresistible demand, and no other alternative

4. Employer has no choice

EEOC: Disparate Impact

Business Necessity – from the EEOC perspective

Three factors:

1. Nature and gravity of crime

2. Elapsed time

3. Nature of the job v. crime committed

EEOC: Recommendations

1. Eliminate policies or practice that exclude convicts

2. Train

3. Develop narrowly tailored policies

SOCIAL MEDIA

2008 2011 20130

102030405060708090

100

SHRM 2013 Study

Emprs Using Social Media

SOCIAL MEDIA: Hiring

• Texas Labor Code §21.001

• Title VII

• ADA

• ADEA

NLRB GENERAL COUNSEL: Social Media

Acting General Counsel reports on employer social media policies

• August 2011 • January 2012• May 2012

Aggressively litigating

MICHAEL MELDER6301 GASTON AVE, SUITE 730

DALLAS, TEXAS 75214214.281.8770

WWW.MELDERLAW.COM