Presented by: Gregg M. Lemley and Burton D. Garland, Jr.

1. How to Keep the EEOC Happy and Avoid Hiring an Ax Murderer: Best Practices for Background Checks in the Social Media Age Presented by: Gregg M. Lemley and Burton D. Garland, Jr.

2. Do-It-Yourself Background Checks

3. Social Media and Hiring • Why look at social media during the hiring process? • Obtain information • Cultural fit • Potential business risk

4. Why View Applicants’ Social Networks? • Discrimination • Disclosure • Lies • Disparagement • Style and ability • Licenses and certifications • Personality

5. Information Discovered – Good, Bad or Both? • Race • Gender • Family • Political Views • Controversial Opinions • Religion • Children • National Origin • Sexual Orientation • Age

6. Information Discovered – Good, Bad or Both? • Marital Status • Prior Lawsuits • Prior Charges • Bigotry • Worker’s Comp Claims • Periods of unemployment • Disclosure of prior employer’s secrets • Drug Use • Alcohol Abuse • Alcoholism • Arrest Information • Criminal History

7. Information Discovered – Good, Bad or Both? • Defamation of employers, clients, or third parties • Image • Whistleblowing • Employer bashing • Employee bad mouthing • Sexual content • Harassment of co-workers • Gender identity • Negativity

8. Information Discovered – Good, Bad or Both? • Health issues • Psychiatric issues • Medical history • Medications • Tobacco use • Other “lawful out of work activities” • Records of disabilities

9. Do Employers Really Want to Utilize This Information? Pros

10. Do Employers Really Want to Utilize This Information? Cons

11. Risks in Using Social Media in Hiring • Discrimination avoidance tip: • Insulate decision maker – have different individual look at the sites and gather specific, relevant information • Only look for specific things, e.g.: • Inappropriate photos • Ties to a competitor • Opposition to your business

12. Recommendations • Make informed decision on use of internet searches for applicants/employees

13. Recommendations • Include release/authorization in applications

14. Recommendations • Check terms and conditions of website being accessed

15. Recommendations • Retain information used for hire/no hire decision

16. Recommendations • Focus on job-relatedness of information

17. Recommendations • Evaluate use of third party to conduct searches

18. Recommendations • Evaluate use of third party to conduct searches • Cons include • Lack of control over search • Inability to obtain some information you may want • Difficulty in defining what would be pass or fail • Fair Credit Reporting Act obligations

19. Recommendations • Consistently apply search

20. Recommendations • Time of search – Pre-Offer/Post Offer

21. Recommendations • Time of search – Pre-Offer/Post Offer • Cons of Post-Offer include • Focusing the applicant on the reason for the decision and potentially leading increased likelihood of litigation due to yanking of job offer

22. Legislation and Threatened Litigation over Requiring Passwords

23. Criminal Background Checks

24. EEOC Issues Guidance Reliance on arrest and conviction records may have disparate impact on individuals because of race or national origin

25. EEOC • EEOC investigating over 100 discrimination claims based on criminal background checks • Pepsi paid $3.13 million to settle EEOC charges based on use of criminal background information to screen out applicants

26. EEOC • EEOC v. Kaplan Higher Education, Inc. (filed Dec. 2010) • Kaplan’s rejection of job candidates based on credit histories had disparate impact on class of African-American applicants

27. EEOC • EEOC v. Freeman (filed Sept. 2009) • Company’s use of credit history and criminal justice information in hiring process had disparate impact on African-Americans, Hispanics, and males

28. EEOC Gets a Black Eye • EEOC v. Peoplemark, Inc. (filed Sept. 2008) • Alleged blanket prohibition on hiring applicants with criminal records • EEOC alleged disparate impact on racial minorities • Class discrimination

29. EEOC Gets a Black Eye • EEOC v. Peoplemark, Inc. (filed Sept. 2008) • Three year investigation = 18,000 pages of documents • Court dismissed case and sanctioned EEOC • EEOC continued to litigate after learning Company did not have or apply blanket policy and hired multiple employees with convictions • Sanctioned $750,000 in attorney’s fees

30. Private Cause of Action • Hudson v. First Transit, Inc. (filed July 2010) • Seeks certification of nationwide class of African-Americans and Latinos whom plaintiff alleges company refused to hire or terminated because of actual or presumed criminal record • Class size potentially numbers 15,000 individuals

31. Private Cause of Action • EI v. Southeastern Pennsylvania Transportation Authority (Third Cir. 2007) • Paratransit driver challenged policy of excluding everyone convicted of violent crime • African American convicted for second-degree murder (gang fight) 40 years earlier • Summary judgment affirmed for employer • Nature of position required utmost care • Unsupervised access to vulnerable adults

32. EEOC Issues Guidance • Enforcement Guidance issued on April 25, 2012 • Took effect immediately

33. The EEOC’s Initial Burden Identifying the policy or practice that causes the disparate impact

34. Disparate Impact Claims • EEOC must: • Identify policy or practice; and • Confirm substantial disparate impact • Expect EEOC requests for voluminous applicant and hiring data (to prove disparate impact in your organization)

35. 1. Identify Policy or Practice Causing the Disparate Impact • Text of policy or practice • How policy or practice is implemented

36. 2. Confirm Disparate Impact • EEOC – national data supports finding that criminal record exclusions have disparate impact based on race and national origin • Employer – present local or regional data and its own applicant data to demonstrate policy or practice did not cause a disparate impact

37. 2. Confirm Disparate Impact • Employers’ evidence of a racially balanced workforce will not be enough to disprove • Commission “closely” considers employer’s reputation in the community

38. Arrests • An arrest, by itself, is never job-related / consistent with business necessity • Does not establish criminal conduct occurred • Presumed innocent until proven guilty • Many arrests do not result in convictions

39. Arrests • May consider conduct if have separate proofmakes individual unfit for position

40. The Employer’s Burden The Business Necessity Defense

41. Disparate Impact Claims – Employer’s Burden • Once EEOC establishes disparate impact, burden shifts to employer to prove: • Policy /practice is job related and consistent with business necessity

42. Establishing “Business Necessity” Defense • 2 ways for employers to show “job-related and consistent with business necessity” • Validation using Uniform Guidelines on Employee Selection Procedures • Targeted screening process

43. 1. Validation • Validate criminal conduct exclusion using Uniform Guidelines on Employee Selection Procedures • Complicated and costly • Includes use of statistical models • Guidance acknowledges challenges

44. 2. Targeted Screening Process • Considers: • Nature and gravity of offense or conduct; • Time since conviction; and • Nature of job held or sought.

45. Factor #1 – Nature and Gravity of Offense • Assessed with reference to harm caused • Legal elements may be instructive • Felony theft involves deception, threat, or intimidation • Misdemeanors treated less severely

46. Factor #2 – Time Passed Since Offense • How much the risk of recidivism declines • EEOC studies (6-15 years?) • No consensus on age of relevant criminal records

47. Factor #2 – Time Passed Since Offense • EEOC’s example: 55-year old African American paratransit driver terminated after employer learned of conviction for second-degree murder 40 years earlier

48. Factor #3 – Nature of Job Held or Sought • Criminal conviction should link to essential functions of position in question

49. Factor #3 – Nature of Job Held or Sought • Job title – starting place • Nature of job duties • Circumstances in which job is performed • Job’s environment

50. Individualized Assessment • EEOC Guidance: For individuals “screened out” by targeted screening process, policy should provide “an opportunity for an individualized assessment”