IndIvIdualIzed Assessments: Overview Of The Eeoc Criminal .
Individualized Assessments:Overview of the EEOC Criminal HistoryGuidance and Tips for Conducting thema white paper from First AdvantageInformation you need. People you can trust.
Executive SummaryOn April 25, 2012, the Equal Employment OpportunityCommission (EEOC) published guidance relating to anemployer’s use of arrest and conviction records. Theguidance discourages blanket exclusions of individualswho have been convicted of crimes and remindedemployers that they should analyze the nature andgravity of the offense, the age of the offense, and therelationship between the job duties and the conviction.Chances of Incarceration1 in 17 if White1 in 6 if Hispanic1 in 3 if BlackAt the time the EEOC Guidance was written in April of 2012.Click here to read the EEOC guidanceThe guidance added a new, never-seen-beforerecommendation that an employer also conduct an“individualized assessment” or case-by-case assessmentto determine if a criminal conviction was job related andconsistent with business necessity. Although the guidancediscusses that such assessment is not always required,for example, when there is such a “demonstrably tight”nexus between a crime and a job, the interpretationof the EEOC seems to be that those instances are therare exception. Generally speaking, the individualizedassessment gives individuals the opportunity to explainor resolve a criminal history uncovered in a backgroundcheck.The goal of the EEOC guidance is to help groups ofindividuals with higher incarceration rates get jobs forwhich they are qualified, without being automaticallyexcluded from the candidate pool due to a criminalhistory.Yet real specific directions have not been published tohelp companies navigate this process successfully. Thepurpose of this guide is to close that gap.Here, we shed light on the process of conducting anindividualized assessment, provide ideas to simplify,document and communicate that process, and thenhighlight areas where companies are getting into trouble.What’s more, you’ll also see benchmarks around whatother companies are doing, as this guide also includesresults from a November 2015 First Advantage customersurvey performed by TechValidate around complianceand criminal record usage in the hiring process. Withfresh, candid insights from other employers about theindividualized assessment process, you can better evaluateyour own policy and make informed updates that alignyour process with industry standards.Where HR Gets Legal UpdatesBenchmark InsightWhat source do you rely on most for legal updates and compliance information?HR Industry sitesand newslettersWhere do you get your HR complianceupdates? Most employers in our surveyreport heavy reliance on legal counsel, butthe second most popular source was HRindustry resources.44%Public news sources19%Professional HRservice providers28%Professional legal counsel (insideor outside your : this is a multiple-choice question — response percentages may not add up to 100Source: TechValidate survey of 1337 users of First AdvantageFADV.com First Advantage 2017
Individualized AssessmentsA White Paper from First AdvantageNo law prohibits criminal background checks. They outline when and how.A Little History2015 marked 50 years for the EEOC—Title VII of theCivil Rights Act of 1964 created the EEOC to enforceprotection. Doors opened July 2, 1965, a year afterthe Civil Rights Act was signed.The EEOC has been clear that while a company may chooseto use criminal history as a screening device in employment,Title VII of the Civil Rights Act requires that when a hiringpractice—such as a criminal background screen—resultsin the disproportionate exclusions of a particular group ofpeople it could constitute discrimination.Equally incriminating is disparate impact. This occurs whenan “employer’s neutral policy or practice has the effectof disproportionately screening out a Title VII-protectedgroup and the employer fails to demonstrate that thepolicy or practice is job-related for the position in questionand consistent with business necessity,” according to theguidance.Since criminal background checks are generally allowedunder the law, a potential Title VII violation boils down totwo analytic concepts: disparate treatment and disparateimpact.According to the 2012 EEOC Criminal History EnforcementGuidance, disparate treatment occurs when an employertreats an individual differently because of race, nationalorigin, or another protected basis. The guidance provides thefollowing example of disparate treatment:Victoria Lipnic, EEOC Commissioner, called it a “wisepractice” to allow candidates to explain past crimes as partof an individualized assessment, in an article for the Societyfor Human Resource Management (SHRM). Yet in that samearticle, she goes on to say that an individual assessmentis not always required under Title VII; it depends on thesituation and circumstances. For example, she remarked thata day care center would not need an individual assessment“There is Title VII disparate treatment liability where theevidence shows that a covered employer rejected an AfricanAmerican applicant based on his criminal record but hireda similarly situated White applicant with a comparablecriminal record.”HR Compliance SurveyBenchmark InsightHow confident are you that your company is compliant with current federal, state and localpre-employment and hiring laws and guidelines such as Adverse Action, Ban the Boxand those enforced by the EEOC?2%Most employers participating in ourcompliance survey feel good about theirlevel of HR compliance, with nearlytwo-thirds feeling “very confident.”Very confident, we stay up-to-dateon current legislative actions36%Somewhat confident, we try to stayinformed but may not always beimmediately aware of recentlegislative changes63%Not very confident, we may beat riskSource: TechValidate survey of 2016 users of First AdvantageFADV.com First Advantage 2017
Individualized Assessmentsof a child molestation conviction before eliminating theindividual from consideration.Basically, an individualized assessment process allows acandidate to provide evidence that a conviction is notrelated to his or her ability to perform a job and allowsemployers the opportunity to determine whether a criminalA White Paper from First Advantagerecord is specifically related to the position being applied for.Unfortunately, the Guidance provides little to no directionaround how to set up a standardized process for performingindividualized assessments.Next up, we offer some information to help you with thatprocess.According to our compliance survey, the greatest concerns around theindividualized assessment process are communicating and documentinginternally what has happened.Benchmark InsightAlso, more than half of respondents said the process could be improved.Improving the Individual Assessment ProcessSatisfaction with the ProcessWhat would you change or improve concerning your individualassessment process?How satisfied are you with your individual assessment process?How the processis conducted3%28%How the processis documented31%How the process iscommunicated to the applicant31%How the process is communicatedinternally to recruiters/HR/hiring manager/legalOther0%Very satisfied. It’s working well48%Not very satisfied. Not workingwell at all48%40%Somewhat satisfied. It works,but could be improvedOther9%10%20%30%40%50%Note: this is a multiple-choice question — response percentages may not add up to 100Performing an Individualized Assessment1. Maintain a written policy.Here are a few guidelines to help you create anindividualized assessment process or align an existingprocess with industry standards.A policy sets the baseline for what and how yourindividualized process will take place. In fact, according toour compliance survey, the majority of respondents have aStandard Written Policy?Benchmark InsightAccording to our compliance survey, themajority of respondents have a writtenpolicy for handling criminal recordinformation, yet a surprising 27 percentdo not.Do you have a standard written policy for handling criminal historyinformation on job applicants revealed through background screening?27%YesNo73%Source: TechValidate survey of 1726 users of First AdvantageFADV.com First Advantage 2017
Individualized Assessmentswritten policy for handling criminal record information, yet asurprising 27 percent do not. Create a policy! Then follow it.2. Consider creating a position specific matrix to identifycriminal records and ensure consistency in application.While matrices should not be used as an automaticdisqualifier in most cases (with the exception generallyA White Paper from First Advantagebeing regulated industries), they can be useful tools inensuring consistent application across a business. Forexample, if there is a minor crime that you believe is notjob related to a specific position, that can be listed as a“pass” or “clear” on a matrix. If there are other crimesthat you believe may be job related, however, thosecould be highlighted as “needs review” and escalated to acentralized source.One or More Reviews?Benchmark InsightDo you have one or a group of people in your company either in HR or otherwise who conductindividual assessments of job applicants who have had criminal history informationrevealed during a background screen?Most employers responding to oursurvey, 65 percent, allow multiple peopleto conduct individualized assessmentswithin their organization, while 35percent of respondents restrict theprocess to one person.35%OneMultiple65%Source: TechValidate survey of 1708 users of First Advantage3. Create a centralized process.While our survey shows most companies have multiplepeople involved in the individualized assessment process,you may want to consider limiting the people involvedto those who “need to know.” Doing so will ensure thatpeople with criminal history who are hired are not treateddifferently or retaliated against and will assist in promotingconsistency in how your individualized assessments areconducted. Many employers are creating a centralizedreview process so that the practice becomes more efficient,generally faster, and promotes consistency throughoutyour organization.4. Allow a Candidate to Provide InformationIn order to conduct an individualized assessment, you willneed to gather information from a candidate so that youcan evaluate the individualized assessment factors. TheGuidance does not specify how you must gather suchinformation, rather, just that candidates should be giventhe opportunity to provide information.Some companies reach out to candidates via telephone toelicit the information. While others allow candidates toprovide information at the time they are soliciting criminalhistory self-disclosure (generally after a conditional offer).Still others choose to elicit such information during thepre-adverse action stage. The Fair Credit Reporting Act(FCRA) requires that employers wait a “reasonable period”between pre-adverse action and adverse action basedin whole or in part on a consumer report. The FederalTrade Commission has opined that 5 business days is areasonable period of time. The purpose of the waitingperiod is to give candidates time to provide additionalinformation and/or dispute inaccurate information, ifnecessary. Some other state and local ordinances requirethat companies wait a longer period of time (i.e., SanFrancisco requires 7 days and New York City requires 3business days from receipt of the pre-adverse action letter).Take the EEOC lawsuit recently settled by BMW for 1.6million. The case alleged that BMW excluded AfricanAmerican workers from employment at a disproportionaterate when the company’s new logistics contractor appliedFADV.com First Advantage 2017
Individualized AssessmentsBMW’s criminal conviction records guidelines to incumbentlogistics employees. It resulted in roughly 100 employeesbeing disqualified from employment—80 percent of thoseworkers were African American.In the consent decree, BMW agreed to allow a candidate 21days to provide additional information.You may want to consider expanding the time frame toallow someone to provide information. Our complianceA White Paper from First Advantagesurvey revealed that 33 percent of respondents are waitinglonger than 5 business days.That said, the EEOC has clarified that a company is notrequired to keep a position open during the disputeprocess. However, “understanding the intent of the adverseaction process is to allow the applicant an opportunity todispute and keeping the position open enables the intent tobe seen through,” said Melissa Sorenson of ecords.aspxAverage Adverse Action Waiting PeriodBenchmark InsightWhile 46 percent of employersparticipating in our survey observe thestandard five-day adverse action waitperiod, a large number of employers—33percent—are expanding that wait to longerthan five days.How many business days do you select to wait between the notice of intent totake adverse action and then the actual notice of adverse action?5 business days46%5-7 business days19%7-10 business daysMore than 10 business days10%3%Other22%0%10%20%30%40%50%Source: TechValidate survey of 1700 users of First Advantage5. Consider worldwide consistencyAlthough individualized assessments are arguably onlyrequired in the United States, consistency creates clarity.To give candidates and employees—both domestic andinternational—equal opportunity, it’s recommendedthat employers extend the individualized assessmentprocess worldwide. In fact, in our compliance survey, anoverwhelming majority of employers surveyed, 71 percent,already incorporate individualized assessments as part oftheir global hiring initiatives.Individual Assessments WorldwideBenchmark InsightYes—71 percent of employers report thatthey include individualized assessmentsas part of their international hiringprocess. If you not doing it, now might bea good time to start.Do you follow the same procedure for individual assessments for applicantsoutside of the United States?29%YesNo71%Source: TechValidate survey of 1630 users of First AdvantageFADV.com First Advantage 2017
Individualized Assessments6. Train, train train!Once you have a policy in place for performingindividualized assessments, diligently train your staff.Document the training and then periodically audit behaviorto ensure complianceSample Individualized Assessment FormUse a consistent form similar to the one below to guide yourindividual assessment process and retain all documentation asproof of completion.A White Paper from First AdvantageArrest recordsUnder the FCRA, a consumer reporting agency (CRA),which includes background screening companies,generally may not report records of arrest that didnot result in a conviction where the arrests occurredmore than seven years ago. However, under the federallaw CRAs may report convictions indefinitely. (Somestates have greater restrictions). In our experience,seven years is the average timeframe MOST customersselect to review.Individualized Assessment FormInformation to Consider and DocumentAbout the Candidate· Candidate name:· Date company received criminal record notification:· What was the criminal record returned?· Did the Candidate self-disclose the conviction?FCRA Compliance· Date pre-adverse action notice sent:· Date adverse action notice sent:Proof of Contact· Date(s) the candidate was contacted and by what means:· NOTE: Proof of candidate contact receipt needed (registered letter, email read receipt)—Attach proof· Did the candidate respond?About the Individualized Assessment· Additional facts or circumstances surrounding the offense?· Common considerations: What was the nature and gravity of the offense? Anything else for this job position?· Age at the time of the offense or time of release.· Common considerations: Recidivism rates decline as age increases· Did the candidate perform the same type of work post-conviction with no known incidents of criminal conduct?· Common considerations: If yes, consider hiring.· Did the candidate do similar work before or after the offense as the job for which they are applying?· Common considerations: What is the nature of the job they are seeking now? Anything else for this job position?· What rehabilitation efforts have been made (school, counseling, courses)· Common considerations: Anything else for this job position?· Can the candidate provide an employment or character references regarding fitness for position?· Common considerations: If yes, contact the references to and ask for examples of job duties similar to position being sought. . . anything else?Conclusion· Does the additional information obtained during the individualized assessment mitigate the risk for this job position?· Was the individual hired?FADV.com First Advantage 2017
Individualized AssessmentsA White Paper from First Advantage 33.5 million. The amount collected by the EEOC in 2015 remedies.Avoiding common errors that get employers in trouble Failure to conduct individualized assessmentsThe EEOC states it will challenge “systemic discrimination,”or patterns or practices that have a broad impact on agroup of employees or job applicants. In 2015, it resolved268 investigations, obtaining 33.5 million in remedies. Failure to consider length of employment in anacquisition situation Failure to allow a candidate the opportunity to provideinformation about his or her convictionThe Commission also set forth a goal to ensure that20 percent of its annual litigation docket in 2015 was“systemic,” and 22 percent to 24 percent of its docket in2016 was systemic.NOTE: The Commission will assess relevant evidence whenmaking a determination of disparate impact, includingapplicant flow information maintained pursuant to theUniform Guidelines on Employee Selection Procedures.In the last few years, the EEOC has targeted companies forthe following acts relating to use of criminal history:2-4%increase B right line policies/rules (“we don’t hire felons”) Application of a client’s bright line policies (ie: staffingcompanies)in annual systemic litigation cases—it’s a 2016 goal for the EEOC.Non-Compliance RiskBenchmark InsightWhat do you feel is the biggest risk to your organizationif you did not or do not maintain compliance?6%Financial costs ranked as the highestrisk of non-compliance by our surveyrespondents, followed by reputationaldamage. Both consequences are very realrisks.10%Costs from potential litigation or finesImpact on company reputation29%55%Loss of clients/businessOtherSource: TechValidate survey of 2062 users of First AdvantageFADV.com First Advantage 2017
Individualized AssessmentsSummaryThe legislative landscape pertaining to hiring andemployment screening is quickly shifting with city, stateand federal updates. Likewise, so is enforcement of thoselaws and regulatory guidelines, as evidenced by the EEOCincreasing its focus on the use of criminal history in thepast few years.To mitigate the risk of EEOC non-compliance, employersshould create and follow a comprehensive individualizedA White Paper from First Advantageassessment process anytime a criminal history is revealedeither by a candidate or as part of a background check.Integrating this extra step in the hiring process can protectagainst costly financial fines, penalties and judgments,while also helping employers build a more inclusive,candidate-friendly hiring process.Act now. Create a policy for performing individualizedassessments, and implement a consistent plan. Documentwhat you accomplish and you will be prepared.DefinitionsBright Line Rule or DecisionsBlanket statement that will get you in trouble: No criminals under anycircumstances.The purpose of a bright-line rule is to produce a consistent application of thehiring process. This is no longer accept
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