BACKGROUND CHECKS AND RETALIATION

1. Des Moines Office E. J. Giovannetti Jeff H. Jeffries R. Ronald Pogge○ Dennis L. Hanssen Lorraine J. May William L. Dawe E. J. Kelly + Gregory T. Racette # Valerie A. Landis Jeff M. Margolin * Anne L. Clark Matthew A. Grotnes Jane V. Lorentzen Hugh J. Cain Tina M. Eick Barbara A. Hering Erin Q. Pals○ Apryl M. DeLange Patrick T. Vint * Nicholas W. Platt Michelle R. Rodemyer Brent L. Hinders Amy B. Pellegrin Robert C. Landess (Of Counsel) Thomas J. Logan (Of Counsel) Terrence A. Hopkins (Retired) Frank T. Harrison (Retired) Fred D. Huebner (1919-1996) Marvin E. Duckworth (1942-2003) Philip H. Dorff (1949-2009) Quad Cities Office M. Anne McAtee * Michael C. Walker * Paul Salabert, Jr. * Maggie R. Manternach * Glenn F. Ruud* Amanda R. Newman * Samuel R. Bailey Adel Office James E. Van Werden Thomas P. Murphy○ Adam Doll * Also admitted in Illinois + Also admitted in Nebraska # Also admitted in Michigan ○ Also admitted in Arizona ◊ Also admitted in Missouri BACKGROUND CHECKS AND RETALIATION Hugh J. Cain Brent L. Hinders February 7, 2013 Des Moines Office 2700 Grand Avenue, Suite 111 Des Moines, Iowa 50312-5213 Phone: 515-244-0111 Fax: 515-244-8935 Quad Cities Office Northwest Bank Tower 100 E. Kimberly Road, Suite 704 Davenport, Iowa 52806-5944 Phone: 563-445-2264 Fax: 563-445-2267 Adel Office 1009 Main Street Adel, Iowa 50003-1454 Phone: 515-993-4545 Fax: 515-993-5214 www.hhlawpc.com

2. EEOC Guidance on Arrest and Conviction Records in Employment Decisions • Issued April 25, 2012 • Purpose was to distinguish between arrests and convictions • Provide the Agency’s view as to how employers should use arrest and conviction records

3. EEOC v. Pepsi Co. • $3.1 million dollar verdict • Pepsi Co. screened employees for convictions AND arrests. • Making decisions based on arrest has already been deemed to be potential for a discrimination claim

4. EEOC Guidance • Do not use arrests as a basis for employment decisions. • If you use convictions as a basis look at • Crime and Seriousness of Conviction; • Age of the Conviction and/or completion of sentence and; • The nature of the job held or sought in relation to the conviction.

5. Relevance of Title VII to Criminal History Employers • Employers can’t treat people with the SAME criminal record DIFFERENTLY because of race, color, religion or national origin. • Employers need to show that job exclusion based on criminal convictions are “job related and consistent with business necessity” for the specific position to avoid disparate impact discrimination.

6. What DID NOT Change with the new EEOC Regulations • Employers can still get criminal background reports (in compliance with FCRA and state law). • Arrest records should not be used in making employment decisions (however, employer can consider “disqualifying conduct”). • You can use convictions as a basis for employment decisions. • A policy or practice that excludes EVERYONE with a criminal record from ANY employment will violate Title VII.

7. What DID Change under the New EEOC Guidance • Greater analysis of disparate impact on individuals in a protected class with criminal records. • Analysis of “job related and consistent with business necessity” defense.

8. a. Employer should validate the criminal conduct exclusion for the position using the Uniform Guidelines on Employment Selection Procedures (UGESP) or another validated organization/study OR b. The employer develops a screening process considering: 1. the nature of the crime; 2. the time elapsed; and 3. the nature of the job Green v. Missouri Pacific R.R., 549 F.2d 1158 (8th Cir. 1977).

9. Provides a defense to Title VII claim if the employer cannot employ an individual due to federal or state law. • However, state law is pre-empted by Title VII if it “purports to require or permit the doing of any act which would be unlawful employment practice.”

10. EEOC Tips about using Criminal Background as a reason for denying employment • Create a written policy regarding factors to take into consideration on hiring for each position. • Train the interviewer on the policy. • Be able to give a simple answer as to why you chose not to hire an applicant based on background. • Make sure policies are narrowly tailored to meet your business justifications. • Broad Policies increase the likelihood of a complaint being successful.

11. Other Issues or Considerations • Can you base a hiring decision on an applicant’s multiple convictions for substance based crimes when that individual is in treatment (ADA protects treating substance abusers)? • 25 of 50 States (not Iowa) have statutes limiting the use of Criminal Records in employment decisions.

12. Fair Credit Reporting Act • Federal law provides that a consumer reporting agency may furnish a consumer report to a person which it has reason to believe intends to use the information for employment purposes. 15 U.S.C. 1681b(a)(3)(B).

13. “Employment Purposes” • Means a report used for the purpose of evaluation a consumer for employment, promotion, reassignment or retention as an employee 15 U.S.C. 1681a(h)

14. Conditions for Furnishing Reports • The consumer reporting agency may furnish a consumer report for employment purposes only if the person requesting the report has complied with the disclosure requirements and will comply with the proscribed conditions prior to taking an adverse action 15 U.S.C. 1681b(b)(1)(A)(i).

15. Disclosure to the Consumer • A person may not procure a consumer report unless • A clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes • The consumer has authorized in writing the procurement report by that person

16. Conditions on use for Adverse Actions • In using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer • A copy of the report • A description in writing of the rights of the consumer under this subchapter as prescribed by the Federal Trade Commission

17. How the FCRA Affects the Employer • If an employer wishes to obtain a credit report for an employment purpose it must obtain from the individual in writing a clear and conspicuous disclosure. The disclosure must be the only item addressed on this signed document • If an adverse decision is taken by the employer based on the report, additional requirement will need to be met

18. Adverse Decisions-FCRA • Adverse decisions are where the employer chooses not to hire, demotes, or terminates an individual based on the findings of the report • Before such action is made, the employer needs to furnish the employee a copy of the report, the name of the reporting agency with its contact information and a description in writing prescribed by the Federal Trade Commission setting forth the consumer’s rights

19. Retaliation • Retaliation is increasingly one of most frequently made claims. • 2012 38.1% of EEOC charges contained retaliation claim. In 1997 it was 22.6%

20. Many civil rights and other employment statutes include an anti-retaliation provision. - Title VII - ADEA - ADA - FLSA - FMLA - ICRA - Iowa Whistleblowing Act

21. Generally Two Types of Retaliation -Opposition -Participation

22. Opposition Claims • Plaintiff does not need to prove underlying employment practice was unlawful. • Rather employee protected if he/she opposes practice which reasonably and in good faith believe unlawful. Clark County School v. Breeden, 532 U.S. 268 (2001). • “Protected activity” – employee’s complaint must relate to unlawful employment practice. - Whether employee had reasonable, good faith belief that employer committed unlawful employment practice. Stuart v. GM, 217 F.3d 621 (8th Cir. 2000)

23. Participation • Filing charge with EEOC or state agency, serving was witness. • Protection absolute regardless of whether underlying claim made reasonably and in good faith. Benson v. Little Rock Hilton, 742 F.2d 414 (8th Cir. 1984).

24. Materially Adverse • To be retaliatory, employer must take “materially adverse” action. • Plaintiff must show reasonable employee might well have been dissuaded from filing or supporting charge of discrimination. This is an objective standard. • Petty slights annoyances, lack of good manner – not enough. However, can be cumulative. Can be action away from workplace.

25. Causal Connection • U.S. Supreme Court accepted in January 2013 Nasser v. Southwestern Medical Center to determine whether standard for causation is: - “But for” as in Gross v. FBL or - “Motivating factor” as in ICRA

26. Kasten v. Saint Gobain, 3/22/11 • Illegal to retaliate against an employee for “filing a complaint” regarding wage and hour laws. • “Verbal complaint” counts just as much as a written complaint • Question remaining, “when and what’s a verbal complaint?”

27. Staub v. Proctor Hospital 3/1/11 • Cat’s paw theory • Employee can establish unlawful discrimination when biased non-decision maker influences unbiased decision maker.

28. Thompson v. North American Stainless, 1/24/11 • It is unlawful to retaliate against someone who files a claim of discrimination. • Can employer retaliate against related parties? • Law protects those “within zone of interest” • Fiancée is within zone of interest.