A Flow Chart for Understanding an Employer Obligations Per EEOC Guidance on Considering Criminal Records in Employment Decisions

The EEOC issued a new guideline regarding the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. You can read the entire document at www.eeoc.gov/laws/guidance/arrest_conviction.cfm

This is not the EEOC’s first foray into this area and so some of the materials are not new. For example, the EEOC differentiates between arrest records and criminal convictions. An arrest alone does not establish that criminal conduct occurred and excluding employees based on arrest records is impermissible. However, an employer can make an employment decision based on the behavior giving rise to the arrest. Similarly, the EEOC has taken the position that convictions are not necessarily reliable evidence that the underlying criminal conduct occurred. 

The EEOC also informs employers that they can be held liable under two theories of discrimination. Under a disparate impact theory, the employer can be held liable under the disparate treatment theory if the it treats one person differently than other persons. An employer can be held liable under a disparate impact theory if its background check policy adversely affects a particular protected group of people. 

After reviewing the Guidance, we have developed a flow chart to help employers understand how to understand the EEOC’s position on using criminal records for employment decisions. We think this flow chart will assist you in developing processes to address the issues raised by the EEOC Guidance. 

Please click on image to enlarge.

We recommend that every employer conduct background investigations. An employer can make a better hiring decision with more information, particularly information that an applicant does not necessarily volunteer. This information could be a criminal background or poor reviews at a prior job, inaccurate educational achievements, or manufactured or exaggerated jobs. 

However, a background check can be subject to challenges of unlawful discrimination. An applicant can claim disparate impact – that you treated him/her differently than other applicants. Perhaps the employer hired one applicant with a criminal record, but rejected another candidate with a similar record. This type of claim will arise most frequently when the employer has not established a policy with respect to what criminal information might exclude a candidate. 

An applicant could also claim that the company’s policy adversely affects persons in his/her protected class. The applicant might allege that by excluding persons with felonies within the past seven years persons of his/her ethnicity are excluded most frequently from being hired. 

You can see that the employer is darned if it does (have a policy) and darned if it doesn’t (have a policy). We recommend the employer consider implementing a policy, but making it sufficiently narrow that it does not adversely affect persons of a particular protected classification, or can be justified based on the job. 

If an applicant makes a challenge, the employer must articulate a justification for its actions. This means the employer must show job-relationship and a business necessity for considering the criminal record. This is where the EEOC Guidance focuses. 

An employer can justify its behavior in one of two ways. It can “validate” its criminal conduct screen for the job per the Uniform Guidelines on Selection Procedures provided data about the criminal conduct as related to subsequent work performance is available and validation is possible. This is not a viable option in most cases. 

The employer can also justify its decision by developing a targeted screen that considers three factors: The nature of the job; the nature of the crime; and the proximity in time between the crime and the application. These are the Green factors as articulated in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977). The screen should also include procedural safeguards. For example, the background check should be done competently and accurately. Second, the applicant should be given the opportunity to respond and explain. 

The employer should exercise due consideration in developing the targeted screen. It should document its analysis. For example, if hiring for a medical office position where the employee will have access to patient data, including data that could be used in identity theft, the employer can probably articulate a screen that excludes persons who have been involved in theft crimes or fraudulent activities. 

The employer will probably need to rely on its background check provider to allow the person to conduct an accurate check, and to provide the applicant an opportunity to respond to the convictions discovered. The information will need to be relayed to the employer so that it can consider the applicant’s response and explanation. 

Developing the target screen and by providing applicants an opportunity to explain the circumstances surrounding any criminal records is the best defense to challenges of unlawful discrimination occurring during the background check process.

Another Example of the Anti-Business Obama Administration

I recently reported on the NLRB's new webpage on "concerted activity."  To me it appears as another attempt at political pandering months before an election. 

This morning I read on Fox News an article about the NLRB's newest member.  Richard Griffin, a recess appointment, was general counsel to a scandal-ridden union.  Mob connections, bribery, intimidation, racketeering.  Great qualities in a union and its leaders!  Aren't we glad Obama carefully selected Mr. Griffin for a position on the NLRB when Congress was in recess, and on a day that allows Mr. Griffin to serve two years without congressional oversight or review. 

You should read the story.  Here's the link:
http://www.foxnews.com/politics/2012/06/22/obama-pick-for-nlrb-union-tainted-by-mob-ties-criminal-past/ 

Employer Beware -- NLRB Emphasis on "Concerted Activities"

My personal opinions are interlaced with this blog posting.  Nevertheless, I believe that my personal opinions might provide employers with a greater sense of government's involvement in the workplace and some reasons for that involvement. 

Over the past year the National Labor Relations Board (NLRB) has been very active in pursuing cases on what many workplace experts believe are novel claims.  Take for example, the battle over Boeing's ability to build a plant in South Carolina.  Another example is the NLRB's position on disciplining employees for social media use. 

I believe that the efforts of the NLRB have been spurred, in part, by the Obama Administration's efforts to solidify support within certain groups in the year prior to the election.  With respect to NLRB actions, President Obama wants to be seen as the man of the common worker, someone who will battle for them and their way of life.  (I can think of many other examples outside of the workplace but will not post those on this blog which is dedicated to workplace issues.)  In my book, the Administration is soliciting votes through what I call the "Doctrine of Appeasement."  If he keeps enough people sufficiently happy, he can win the election.

Employers should be particularly careful under this Administration about the NLRB's efforts to appease your employees.  A great example of this is the announcement "NLRB Launches web page describing Protected Concerted Activity."  You can see it here:  www.nlrb.gov/concerted-activity.  (Copy the link into your browser.)  It's a well-done cite.  It has a map showing the many wonderful things the NLRB has done for employees throughout the nation.

As a result of the NLRB's emphasis on this topic, "Concerted activity" has become a viable and important area of concern for employers.  Scrutiny should be given in every disciplinary setting to make sure the employee is not able to contend the action was taken due to some type of "concerted activity" in which he participated.

Anyone Can Sue Your Company for Retaliation -- Fitzsimons v. CEP Med. Group

In a very compelling decision, the First Appellate District of the California Court of Appeal concluded that a non-employee can sue an employer for retaliation.  In this case, a partner sued her partnership for allegedly retaliating against her after she complained that certain members of the partnership had sexually harassed female employees. 

This case applies to all employers.  It has particular significance to professional associations such as medical groups, law firms, accountancy firms, which have historically taken the position that their partners or shareholders could not sue the company under civil rights laws.  Moreover, these professions are filled with many headstrong personalities who push a particular agenda and do not appreciate criticism of their methods. 

Dr. Fitzsimons was a partner in the California Emergency Physicians Medical Group (CEP).  She had served as a medical director at one hospital.  Thereafter, she served in the appointed position of Regional Director over multiple hospitals.  She also served on the board of directors. 

Female employees complained to Dr. Fitzsimons of sexual harassment.  Dr. Fitzsimons forwarded these complaints for investigation and resolution.  She claimed that in response to making complaints of sexual harassment perpetrated on CEP's female employees, CEP removed her from the position of Regional Director.

Dr. Fitzsimons sued the partnership and two officers.  The claims were dismissed with respect to the individual defendants.  At trial, the court instructed the jury that if Dr. Fitzsimons was a partner and not an employee, she could not sue under the California Fair Employment and Housing Act (FEHA).  The jury concluded she was a partner and the trial court entered judgment in favor of CEP. 

The Court of Appeal made reference to two very important Supreme Court cases:  Reno v. Baird (1998) 18 Cal.4th 640; and Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.  In Reno, the court concluded that a supervisor can be held liable for harassment, but cannot be held liable for discrimination.  Jones held that a supervisor cannot be held liable for retaliation.  (If you need a refresher course on the differences in these terms, please attend our Legal Beagle Bagel Breakfasts.)  In part, these decisions were based on the use of the term "person" used in those provisions of FEHA prohibiting discrimination, harassment and retaliation. 

The Fitzsimons case presented a different issue than Reno and Jones.  Fitzsimons asked the question of whether an employer (not a supervisor) could be held liable for retaliation against a non-employee.  The court answered in the affirmative. 

The retaliation provision of FEHA reads:  "It is an unlawful employment practice for any employer ... or person to ... discriminate against any person because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA]." 

Note that the term "person" is used three times in this provision.  It refers to two different persons.  The first reference identifies the person who can be held liable for retaliation.  The second and third references identify the person who suffers because of the retaliatory action.  The court concluded that Reno and Jones recognized that a person, as identified in the first reference, can include an employer only.  However, the court concluded that the term person in the second reference includes anyone who is the victim of retaliation, and that includes a partner. 

The court confirmed that a partner cannot assert a cause of action that (s)he was harassed by his/her employer.  FEHA does not cover such claims.  However, a partner can sue for retaliation imposed by the employer. 

This case should serve as a wake-up call to professional associations, and to other partnerships.  Big egos and dominant personalities are not uncommon in professional associations or business leaders.  They are successful, in part, due to their drive and determination.  However, much too often I see in the medical and other groups we represent, a dominant personality taking the place of good business judgment.  Treating a partner poorly because (s)he reported or opposed harassment of an employee may give rise to a claim against the company.