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Background Checks. Background Screening. EEOC’s Strategic Enforcement Plan. FY 2013 to 2016 Eliminate barriers Using i nvestigations and litigation Target class b ased intentional and facially neutral Hiring and recruiting p ractices Adversely impact particular groups.
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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
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
Consumer Financial Protection Bureau: Not A Consumer Report • Communications for the purpose of employee recruiting • Communications involving the investigation of employee misconduct
Consumer Financial Protection Bureau: Consumer Reporting Agency • Anyone who receives money • & • “Regularly” assembles or evaluates consumer reports • & • Furnishes those reports to third parties
Consumer Financial Protection Bureau: Putting It Together • Mad Men Season 6, Episode 11 • Pete Campbell is concerned about an up and comer Bob Benson • Pete Campbell hires Duck Phillips to look in Bob Benson • Duck worked with Pete, Duck is now a recruiter • Does the FRCA Apply?
Consumer Financial Protection Bureau: Compliance • Prior to asking for a report, employer must: • Disclosure • Authorization • Certification to Consumer Reporting Agency: • The above has been complied with, and • The information is for employment purposes
Consumer Financial Protection Bureau: Compliance • Pre-Adverse Action • Notice of what action will be • Give consumer report and Notice of Rights • Post-Adverse Action • Notice of action taken • Contact info for the Consumer Reporting Agency • Consumer Reporting Agency had not voice in the decision • How to get a free copy • Right to dispute
EEOC: Stats • Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions
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: • Related to job performance • Not business convenience test • Irresistible demand, and no other alternative • Employer has no choice
EEOC: Disparate Impact • Business Necessity – from the EEOC perspective • Three factors: • Nature and gravity of crime • Elapsed time • 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: 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 730Dallas, Texas 75214214.281.8770www.mELDERlaw.com