Category Archives: background checks

Considering Criminal Convictions

mug shotDelving into job applicants’ criminal records during the hiring process can get dicey.

Many employers are legally permitted to pose questions concerning criminal history on job applications. But an increasing number of cities and states are moving to prohibit such queries, enacting “Ban the Box” laws that eliminate questions about criminal convictions and, theoretically, help level the playing field for job seekers with criminal backgrounds.

The EEOC has recommended that all organizations take similar steps, and has encouraged employers to avoid relying on bright-line background screens to weed out those with criminal infractions in their past.

A recent survey conducted by Cleveland-based EmployeeScreenIQ finds that, while many companies still seek information about criminal histories, they may be starting to put a bit less emphasis on what these inquiries uncover.

In its poll of nearly 600 HR professionals, EmployeeScreenIQ found a majority of respondents (66 percent) indicating they continue to ask candidates to self-disclose criminal convictions on job applications, while 78 percent said they ask them to do so at some point in the hiring process.

Just 8 percent, however, said they automatically disqualify an applicant who admits to having a criminal record before a background check. Less than half of the survey respondents (45 percent) said job candidates with criminal records are not hired due to their past imprudence less than 5 percent of the time.

What sort of indiscretions worry employers the most? When asked what type of convictions would disqualify a candidate from consideration for a job, survey respondents most commonly replied:

• Violent crimes (felony convictions) – 88 percent

• Crimes of theft and dishonesty (felony convictions) – 82 percent

• Drug offenses (felony convictions) – 68 percent

Misdemeanors matter as well, with 52 percent citing misdemeanor convictions for crimes involving theft or dishonesty as dealbreakers. Fifty-two percent said the same about misdemeanor convictions for violent crimes. In addition, 35 percent indicated misdemeanor drug offenses would take an applicant out of the running, and 13 percent said minor infractions and/or driving offenses would exclude a candidate. For that matter, 8 percent of respondents said charges that didn’t result in a conviction may eliminate a job applicant from contention.

(A full, complimentary survey report is available for download here)

Naturally, felonies “have always been of greater concern,” says Nick Fishman, co-founder of EmployeeScreenIQ, and the organization’s chief marketing officer and executive vice president.

“I do think [employers] are justified in their concern over felony offenses,” he says, “especially relating to violence and theft or dishonesty. These types of offenses really speak to a person’s character, and could foreshadow future problems.”

Misdemeanors can be “a bit trickier,” adds Fishman, noting that patterns of behavior should be the key indicator in weighing criminal convictions.

“Regardless of the criminal activity, employers need to look at things such as the type of crime, severity, age [at the time] of conviction, whether the person is a repeat offender and relevance to the job before making a hiring decision.”

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Another EEOC Setback in the Courts

I can’t help but think this latest slap on the wrist of the Equal Employment Opportunity Commission (as documented by HR Morning) will only embolden the agency.

121266265-soc media and hiringThat has been the sentiment after past EEOC court defeats, including this one I blogged about several months back.

In this latest case, a federal appeals court upheld the dismissal of a lawsuit filed by the EEOC against Kaplan Higher Education Corp., claiming the company improperly used credit histories to screen job applicants.

The agency claimed Kaplan discriminated against black candidates applying to senior-executive, accounting and other financially sensitive positions. The EEOC, meanwhile, hired a third party to prove the credit checks had a disparate impact on black applicants, but the court found the third party’s research process — which included examining driver’s licenses to determine race, a technique it calls “race rating” — was flawed and unreliable.

What’s more, the court found, the EEOC was making charges about a background-check technique it employs. And that’s not all the problems found by the court.

As quoted from the ruling, care of HR Morning:

In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.

… We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.”

This piece from Forbes offers additional details and perspective about the case.

From my limited perspective, I’m starting to see enough of these failed EEOC prosecutions to think the agency might have better luck returning to the old days of helping employers comply rather than looking for ways — even paying third parties to find ways — to nail them.

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EEOC Shares Tips on Background Checks

handcuffsSome would argue the EEOC’s guidance on the use of criminal background check information offers more confusion than clarification for employers.

Critics—including a group of nine state attorney generals that penned a letter detailing its grievances to the EEOC—contend the agency’s regulations unduly burden employers with costs, could actually create more opportunities for discrimination, and may circumvent many state laws with respect to background checks for employment purposes.

The EEOC has made efforts to address such concerns. In September 2013, for example, the agency responded to the aforementioned letter, explaining its recommendation that employers use a two-step process for job applicants—including individualized assessment as the second step—rather than relying on bright-line screens alone.

Earlier this week, the EEOC—along with the U.S. Federal Trade Commission—made another attempt at shedding light on the subject, offering tips to employers and job seekers alike, in the form of two technical assistance documents.

The organizations issued the documents—one for employers, one for job applicants and employees—in an effort to “explain how the agencies’ respective laws apply to background checks performed for employment purposes,” according to an EEOC statement.

For example, the EEOC advises employers to “be prepared to make exceptions for problems revealed during a background check that revealed a disability. … If you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job—despite the negative background information—unless doing so would cause significant financial or operational disability.”

The document also reminds organizations of their responsibilities before taking an adverse employment action, such as supplying an applicant or employee a notice that includes a copy of the consumer report the company used in reaching its decision, and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”

The publication geared toward employers does contain some “helpful reminders for employers who pursue background checks on applicants or employees,” says Rachel Reingold Mandel, a shareholder in the Boston office of labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart.

The information presented in the document is especially useful in light of FCRA requirements “[losing] the spotlight recently,” says Mandel, “as the EEOC and state law anti-discrimination focus has gained traction.

“This publication helpfully reminds employers that it is important to both use background checks in ways that do not discriminate based on protected characteristics—race, color, sex and national origin, for example—and to follow [FCRA’s] technical requirements.”

Organizations and HR leaders “have worked to balance their obligations under the federal Fair Credit Reporting Act against their obligations under applicable anti-discrimination laws, including those enforced by the EEOC,” she says.

“This publication provides a helpful guide to the steps employers should follow to comply with both the FCRA and federal anti-discrimination laws,” continues Mandel, adding that employers would be wise to “keep in mind separate state-specific laws, including those that prohibit asking any criminal background questions on employment applications.”

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Employers’ ‘Scariest Issues’ in 2014

I don’t know how frightened you are by all these. I do know you’re aware of each and every one of them. But I thought I’d share them anyway.

465250769 -- frightenedWhat intrigued me about this free downloadable list of the 11 (not 10, mind you) Scariest Issues Employers Face in 2014 from XpertHR is how cleanly they’re all packaged. And the list itself seems pretty accurate as well: medical (and, yes, recreational) marijuana in the workplace, same-sex marriage, technology in the workplace, healthcare reform, immigration and Form I-9 compliance, misclassification of independent contractors, minimum wage and overtime violations, curtailing background checks, emerging protected classes and curbing workplace discrimination, employee leaves and reasonable accommodations, and expansion of “protected concerted activity.”

Whoever put this together knows a little something about HR leaders’ sleepless nights, I’m thinking.

I also like the way each topic is broken down into two parts: “The Issue” and “What an Employer Should Do.” Hey, those are certainly two of the most important points we need to cover in our features and news analyses here at HRE.

The same-sex-marriage section was especially helpful, laying out specifically how United States v. Windsor (in which the U.S. Supreme Court declared Section 3 of the Defense of Marriage Act unconstitutional) impacts employers:

Following this landmark decision, both the Internal Revenue Service and Department of Labor adopted a state of celebration rule, meaning that a valid same-sex marriage from another state must be recognized for federal tax purposes in all states. Thus, even if an employee resides in a state that does not recognize same-sex marriage, that employer must comply with IRS regulations regarding the tax treatment of employee benefits. The DOL has pronounced that in the wake of Windsor, same-sex spouses are now eligible for the same benefits and protections as opposite-sex spouses under employer health plans, retirement plans and other benefits covered under the Employee Retirement Income Security Act. Same-sex spouses are also entitled to leave under the Family and Medical Leave Act if living in a state recognizing same-sex marriages.”

Kind of wraps it up nicely. The advice to employers is what you’d expect, and what we’ve written about, but it’s still nice to see it packaged concisely as well:

Accordingly, employers should review their employee handbooks, policies and procedures — particularly pertaining to discrimination, benefits and leaves — and make any necessary revisions regarding the treatment of same-sex spouses. Further, employers should know what types of same-sex relationship their states recognize, the tax benefits provided to an employee’s same-sex spouse or partner, and whether the state follows or departs from federal law under Windsor.”

Also helpful, and in one place, is a chart listing where every state stands on legalized marijuana, same-sex-marriage recognition, minimum wage (with each state’s wage listed) and adoption of Ban-the-Box (criminal background) legislation.

Again, you may not learn anything startlingly new, but armed with brief rundowns and good advice on each of these “scary issues” might help alleviate some trepidation.

I know I plan to hang onto it for some handy frames of reference.

 

 

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More Restrictions on Criminal-Background Checks

California appears to be the latest state to join the criminal-background-restriction bandwagon. A new law enacted last month amends the California Labor Code to prohibit public and private employers from asking job applicants about criminal records that have been expunged, sealed or dismissed.

gavel and handcuffs -- 162424875“The good news is that [the law] doesn’t break entirely new ground, but instead modifies existing law,” says Brian Inamine, a LeClairRyan labor and employment attorney and shareholder in the firm’s Los Angeles office, in this release about it. “The bad news is that it represents one more hurdle that businesses have to contend with.”

Indeed, as my Nov. 13 news analysis on HREOnline points out, the hurdles are racking up. To date, 43 cities, counties and municipalities, and 10 states have passed “ban the box” legislation for public-only or public and private employers, making questions about criminal convictions on job applications illegal.

What’s more, as that story points out, there’s still a lot of confusion about what’s required of employers under the U.S. Equal Employment Opportunity Commission’s guidelines on criminal-background checks.

Actually, as it says, nothing’s really required. There’s no federal law being dictated in the guidelines, but failing to follow them could lead employers to discrimination charges under Title VII of the 1964 Civil Rights Act, which the guidelines are based on. The EEOC maintains criminal-history checks disproportionately impact minority candidates. For a rundown of some of the events and issues leading up to the EEOC’s guidelines, take a trip here through some of our earlier blog posts.

Another recent news analysis of mine looks at an additional potential punishment, under the Fair Credit Reporting Act, that Disney recently found itself ensnared in. In a class-action lawsuit, Culberson vs. The Walt Disney Company, Robert L. Culberson claims Disney illegally barred him from employment by failing to provide him with the proper adverse-action notice — required by the FCRA when an adverse-employment decision is based on any portion of a background check.

In that case, Culberson’s background check showed a criminal conviction on a battery charge from 1998 — when he was 19 years old — that had been expunged from his record in 2010. He claims he was not given the opportunity to correct the information before the company decided not to hire him, nor did Disney re-evaluate his application after the background-screening company, Sterling Infosystems Inc., eventually removed the conviction from his record and issued a new report.

As the new California law reminds us, and as the sources in all these linked stories and posts underscore, make sure you know what criminal-background laws govern the jurisdiction(s) you’re in and — equally important — what other laws might come in to play should you fail to follow proper procedures.

 

 

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Beware a Fired-Up EEOC Following Legal Setback

Although a case lodged by the U.S. Equal Employment Opportunity Commission against Dallas-based Freeman Cos. was dismissed by a Maryland federal judge back on Aug. 9, this warning last gavel and handcuffs -- 162424875week from a background-screening company suggests HR better stand tall, get prepped and be ready for an even-more aggressive EEOC because of the dismissal.

The United States District Court of Maryland dismissed the EEOC’s disparate-impact suit over alleged discriminatory background checks without trial because of flaws it found in the EEOC’s case —including unreliable expert testimony and failure to attribute any supposed disparate impact to a specific employment practice.

A Sept. 10 release by CriminalBackgroundRecords.com says the loss “represents a setback in the EEOC’s efforts to enforce the use of criminal histories as part of pre-employment practices as highlighted in EEOC guidellines.”

Yet, says Adam Almeida, that company’s president and CEO, “despite this ruling, the EEOC will continue to enforce [its] guidelines and may do so with greater veracity. Now, more than ever, is the time to review all background-screening policies … to remain compliant.”

His release includes a link to an article posted to BusinessInsurance.com, in which Pamela Q. Devata, a partner with Seyfarth Shaw in Chicago, is quoted saying that, if anything, the ruling “will cause [the EEOC] to become more focused on this issue.”

For a much more in-depth look at the case, here is an excellent and informative piece by Littler attorneys Rod Fliegal and Jennifer L. Mora. And here are two different links to the case itself: one from Google Scholar and another from the court itself.

In the meantime, Almeida’s release sums up nicely the precarious position all employers are in, waiting for clarity on the EEOC’s criminal-background guidance (which, Almeida says, was unfortunately not contained in this latest ruling):

Employers remain in the tricky position of [trying to decide] where and when to use criminal histories, and other specific reports, and in what specific circumstance[s] background-screening reports [can] be utilized.

By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.

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Bring Back the Box?

job appIn 2010, the California State Personnel Board mandated that the state’s civil-service job applications would no longer seek information pertaining to criminal backgrounds. Today, the state may be wishing it had a do-over on that one.

Perhaps asking Carey Renee Moore if she was ever convicted of a felony would have precluded her from getting another job with the state after a two-year stint in jail on felony grand theft charges.

Moore pleaded no contest to those charges in 2007. According to prosecutors, Moore embezzled $320,000 two years earlier—buying a television, hot tub, adult videos, whips, chains and other items with her ill-gotten gains—while working as a procurement officer for the state’s Department of Child Support Services.

Moore, who was known as Carey Renee Aceves at the time of her arrest in ’07, was reportedly in the process of being fired at that point, but resigned before the action became final. As such, no record of her crime was entered into her personnel file, leaving her free to pursue opportunities with other state agencies.

And, apparently no one asked any criminal background-related questions when she applied for a position with the High-Speed Rail Authority after leaving prison. In 2011, she was hired by the agency, where she purportedly received positive reviews, a raise and a promotion. Her employer’s suspicion was aroused, however, when the Franchise Tax Board began garnishing Moore’s wages in an effort to collect more than $373,000 in restitution.

When asked about the garnishment, Moore allegedly claimed the money was being applied to taxes she owed while working at the Department of Child Support Services. According to state records, the High-Speed Rail Authority’s director of human resources fired Moore in July 2012, for lying to secure her job. Moore withdrew a subsequent appeal of her dismissal, but has since fought for—and won—her unemployment benefits.

California is far from the only place where questions surrounding the criminal records of employees and/or job applicants are restricted. The New Jersey Senate, for example, recently introduced The Opportunity to Compete Act, which put the Garden State in the company of more than 40 cities and counties—including Boston, Chicago, Detroit, New York, San Francisco and Seattle—seeking to “ban the box” that asks about criminal histories on job applications.

So, its safe to say a trend has developed, and we’re almost certain to see more cities pursue similar initiatives. But it’s also a good bet there is at least one employer in California right now who, in light of the Moore debacle, wouldn’t mind bringing the box back.

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EEOC Makes Good on Promise

Guess our timing couldn’t have been better.

As our June 16 edition was rolling off the presses with its cover story, “Watch Your Step”—a feature exploring the EEOC’s increased focus on candidate-screening practices, including criminal background checks—the EEOC announced suits against a BMW manufacturing facility and Dollar General, alleging they engaged in HR practices involving criminal-background checks that had an adverse impact on African-American workers.

As our story notes, recruiting and hiring continue to be top priorities for the EEOC, which prominently included them in last December’s Strategic Enforcement Plan. In line with that, the agency has argued that screening out people with convictions can be discriminatory to African-Americans and other minority groups.

dv563004Apparently, the EEOC is making good on its promise to crack down on employers. In the BMW case, involving employees of a contractor, the agency alleges that the auto manufacturer disproportionately screened out African Americans through its policy to deny facility access to employees and employees of contractors with certain criminal convictions, without any time limits. One of its contractors (UTi Integrated Logistics), however, limited its criminal background-check reviews to seven prior years.

When BMW replaced that contractor with another, the EEOC press release said, some of the contract workers who were invited to reapply for jobs with the new contractor were told that “they no longer met the criteria for working at the BMW facility and were subsequently terminated and denied rehire … .”

The Dollar General case, meanwhile, involves two job applicants. One alleged the applicant had a job offer revoked by the discount retailer because of a prior conviction; the other alleged the applicant was denied employment based on a felony conviction attributed to her that had never occurred.

The cases are believed to be the first brought by the EEOC since it issued guidance last year regarding the use of arrest and conviction records in the hiring process. But if employment attorneys are correct, HR leaders should expect more to follow.

Rod Fliegel, co-chair of the hiring and background checks practice group at Littler Mendelson, notes the new lawsuits reflect the EEOC’s vigorous interest in enforcing the Commission’s interpretation of Title VII of the Civil Rights Act of 1964 and predicts “a flurry of new EEOC charges and broad-based investigations” over the next 12 to 24 months.

Most of those interviewed for our June 16 cover story seem to agree that the issue represents one of the more slippery slopes for employers today as far as compliance is concerned.

As Jonathan Segal, a partner with Duane Morris in Philadelphia, points out: “This is an area where, in my view, employers are between the cross hairs—between the risk of a claim by the EEOC and the risk of a negligent-hire claim.”

Indeed, as you’ll read in “Watch Your Step,” there are no shortages of grey areas and the universal advice of employment attorneys for employers seems to be: tread carefully! “There’s no bright line that you can draw in this area, nor does the EEOC want you to draw a bright line … or the courts, for that matter,” points out Gary D. Friedman, a senior partner with Weil Gotshal & Manges.

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Mulling (Some Testy) Background-Check Testimony

The U.S. Commission on Civil Rights is still wading through testimony gathered Friday during its briefing to determine what impact the U.S. Equal Employment Opportunity Commission’s guidance on criminal-background checks is having or may have on the employment of black and Hispanic workers.

At this point, there doesn’t seem to be a precise timetable for an ensuing report and/or recommendation from the civil rights commission, or specific plan for the guidance, which the EEOC issued on April 25. But safe to say, one overriding theme of the Dec. 7 testimony — taken from 17 different individuals, representing employer groups, advocacy organizations, screening groups and providers, and employment sectors across the country — came in loud and clear: Businesses need to continue screening for criminal histories and they need some clarifications on portions of the guidance or they will remain, as one testified, “between a rock and a hard place.”

In the words of the USCCR, in its announcement about the Friday briefing, “the commission has initiated this investigation to determine whether the new EEOC guidance policy or other prohibitions or limitations on the use of criminal background checks results in lower job opportunities and reduced employment overall among minorities, including non-offenders.”

In other words, the commision’s concern — as raised over the past year by one of its commissioners, Peter Kirsanow — is that, for employers to either remove or not rely so heavily on the criminal-conviction question in a job application, as the EEOC has recommended, they might be creating a hiring system that, in turn, encourages discrimination of black and Hispanic males due to the sheer larger incarcertaion rates for these minorities.

As Rich Mellor — vice president of loss prevention for the Washington-based National Retail Federation and one of those testifying — told me in a follow-up phone call, “without that confirmation that an applicant does not have a criminal background,” an employer might be prone to try that much harder to hire a non-minority.

Even with such a confirmation, or disclosure of a criminal record and the chance to explain, minority job applicants are often hobbled by still-pervasive racial bias in hiring, according to testimony from Glenn E. Martin, vice president of development and public affairs for The Fortune Society, based in New York. He cited a Princeton University study of the low-wage labor market in New York that showed black and Latino applicants with clean backgrounds fared no better than white applicants just released from prison.

“Moreover,” Martin testified, “the positive outcomes for black applicants, when presenting evidence of a criminal record, were reduced by 57 percent.”

Mellor, in his testimony, raised an additional red flag about the transparency of this crucial criminal-background conversation. The EEOC guidelines, he said, “were enacted without giving retailers or other employers a chance for input,” according to an NRF release issued just after the briefing. “Hearings,” it says, quoting Mellor, “were held only with a ‘select group of predetermined stakeholders’ and actual text of the guidelines was released only the same morning that they were approved and implemented by the EEOC.”

The EEOC gave me this response today to the NRF’s release:

The NRF and other business groups communicated their views to the EEOC, and we considered them during the development of the guidance. Representatives of employers, individuals with criminal records, and other federal agencies testified at public EEOC meetings in November 2008 and July 2011.  The [EEOC] also received and reviewed approximately 300 written comments from members of the general public and stakeholder groups that responded to topics discussed during the July 2011 meeting.

The stakeholders that provided statements to express their interests and concerns include prominent organizations such as the Retail Industry Leaders Association, the U.S. Chamber of Commerce, the Society for Human Resource Management, the American Insurance Association, the National Association of Professional Background Screeners, the NAACP, Leadership Conference on Civil and Human Rights, the Public Defender Service for the District of Columbia, and the D.C. Prisoners’ Project, among others. Additionally, throughout the process of drafting the guidance, individual commissioners and staff met with representatives from various stakeholder groups such as the U.S. Chamber of Commerce, SHRM, HR Policy Association, College and University Professional Association for Human Resources, the National Employment Law Project and the Equal Employment Advisory Council to obtain more focused feedback on discrete and complex issues.

Many of those organizations listed above had people testifying Friday before the USCCR as well, in addition to employment lawyers Jackson Lewis and Duane Morris, screening provider EmployeeScreenIQ, the U.S. Bureau of Justice Statistics and many more.

Duane Morris’ Jonathan Segal, who testified Friday on behalf of SHRM, told the commissioners that some state and federal laws require employers to conduct background checks for positions such as daycare providers and firefighters. EEOC guidance, he said, puts employers in the tenuous position of “losing their state license if they don’t comply with a state law mandating criminal background checks and risking a class-action lawsuit if they go forward with criminal background checks and base hiring on the results.”

In addition, he said, the guidance’s interpretation of disparate impact appears to make employers “vulnerable to an EEOC investigation any time they take an adverse employment action against individuals of certain races or national origins based on criminal background checks regardless of whether they have conducted a valid individualized assessment — seemingly making criminal convictions a new protected status.”

Rest assured I will be following this and will report developments as I catch wind of them. Pretty packed with pressing issues for employers, I’d say.

 

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New Way of Looking at Risk vs. EEO Compliance

Came across an interesting just-launched website devoted solely to providing employers and their HR teams with, as the site says, “expert, creative, and cost-effective solutions for managing the burgeoning risk of workplace EEO disputes.”

A bit too focused, you might ask? Au contraire, says Merrily Archer, an employment attorney and founder of Denver-based EEO Legal Solutions and it’s brand new site. Here’ how she describes “the gathering EEO storm” on her home page:

The number of EEOC charges will hit 100,000 in 2012, with increasing prevalence of age, disability, retaliation and systemic (‘disparate impact’) charges. In-house counsel now report that employment matters, both administrative activity and litigation, rank first in amount and frequency. No doubt, the ‘face’ and frequency of discrimination has changed markedly since the Civil Rights Act of 1991, ranging from pro se individual charges to full-blown EEOC systemic investigations and class-action litigation. Given the variable risk inherent in EEOC charges and EEO litigation, employers must master claim avoidance, evaluation, and resource allocation to avoid defraying expensive external ‘solutions’ to comparatively minor EEO problems.

Archer, a former attorney with the U.S. Equal Employment Opportunity Commission, know’s from whence she speaks. She’s been a key and outspoken source for HRE on the EEOC’s aggressive systemic push of late, in this piece, this one, and this, to share just three. She also contributed this byline for us on how to fight back against the push.

Her new site, she says, offers employers’ existing HR and legal teams coaching and training “to reduce reliance on outside counsel and by extension, expensive ‘solutions’ to more minor EEO problems. Through lean litigation, EEO Legal Solutions proves that employers can still afford to fight when they’re right.”

For your frame of reference, and an understanding of what the EEOC is after, here is the agency’s selected list of systemic hiring resolutions and filings as of April and a full rundown of the systemic focus when it was initially proposed years ago.

I especially like Archer’s blog post on her site itemizing the reasons “Our Workplaces Don’t Work”:

Since the passage of the Civil Rights Act of 1991, our workplaces have become ‘overlawyered’ regulatory quagmires in which employers balance competing laws and risks on a daily basis: the risk of a negligent hiring/entrustment/supervision claim versus the risk of an EEOC systemic investigation over use of pertinent criminal background information; the risk of retaining an underperforming employee versus the risk of an EEOC charge; the risk of workers’ compensation claims against the risks of claims under the Americans with Disabilities Act, as amended, and the absurdly complicated Family and Medical Leave Act; the risk of financial collapse versus the risk of individual and systemic EEO claims arising from a necessary reduction-in-force; the risk of going out of business versus the risk that the EEOC will impose its judgment regarding what constitutes ‘successful’ job performance … and on it goes … employers have become stuck in this ‘damned-if-you-do-damned-if-you-don’t’ EEO regulatory maelstrom, sacrificing basic management considerations of employee accountability, reliability and even competency.

William Tate, president of Chicago-based HR Plus screening solutions, talked about that first risk when he and I met at the Society for Human Resource Management conference this past June. He likened the EEOC’s background-screening mandate to a kind of “Sophie’s Choice” for his clients between following the new rules and keeping their workplaces safe.

The cost alone of retraining recruiters to conduct and document individual reviews for each former convict, he told me, threatens many (especially smaller and mid-sized) employers’ survivals.

And he didn’t even mention the legal costs Archer says she aims to spare employers.

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