来自美国平等就业机会委员会 (EEOC) 的更新指南。EEOC 于 2012 年 4 月针对其认为可能会无意中歧视少数族裔的商业行为作出回应，针对雇主在招聘过程中应如何使用犯罪背景调查发布了修订指南。从广义上讲，修订后的指南建议雇主考虑使用犯罪记录检查的必要性、范围和适用性，并且此类检查的结果应针对每个申请人进行“个性化评估”。
EEOC 加强审查并采取行动。在发布修订后的指南后，EEOC 对雇主提起了两起诉讼，声称该组织关于犯罪背景调查的政策导致了对少数族裔申请人和雇员的歧视。此外，EEOC 在其四年战略执行计划中列出了其首要任务之一是“消除招聘和招聘中的系统性障碍”，这表明可能非常注重执行更新后的指南。
根据公平信用报告法 (FCRA)，针对雇主的集体诉讼增加。越来越多的雇主因违反 FCRA 规定的申请人和雇员权利而提起诉讼。其中一些指控包括授权和披露表格不足以及不利行动过程中的通知不足。最近这些诉讼的和解金额在 2.5 到 300 万美元之间。
As a result, many employers are eager to audit and update their screening programs to help protect themselves from litigation or other legal actions.
To help organizations with this process, it may be helpful to review some of the recent events that have spurred this evolution.
Updated guidance from the U.S. Equal Employment Opportunity Commission (EEOC). Responding to what it considers to be a business practice that could unintentionally discriminate against minorities, the EEOC, in April 2012, issued revised guidance to employers regarding how they should use criminal background checks during the hiring process. Broadly speaking, the revised guidance advises employers to consider the necessity, scope, and applicability of using a criminal record check, and that the results of such a check should be subject to an “individualized assessment” for each applicant.
Increased scrutiny and action from the EEOC. Subsequent to issuing its revised guidance, the EEOC filed two lawsuits against employers, claiming that the organizations’ policies regarding criminal background checks resulted in discrimination against minority applicants and employees. Additionally, the EEOC listed in its four-year Strategic Enforcement Plan that one of its top priorities is “eliminating systemic barriers in recruitment and hiring”, indicating a likely strong focus on enforcing the updated guidance.
Increased class-action lawsuits against employers under the Fair Credit Reporting Act (FCRA). More lawsuits are being filed against employers regarding violations of applicant and employee rights under the FCRA. Some of these accusations include inadequate authorization and disclosure forms and deficient notifications during the adverse action process. Recent settlements in these lawsuits have ranged between $2.5 and $3 million.
Legislative changes at the state and local level. State and local legislative bodies are also taking a closer look at the use of criminal record and credit history information during the hiring process. Some of these bodies have passed legislation placing strict regulations on how employers can use this type of information to make an employment decision.
Given the collective impact of all of these developments, it is no wonder that many employers are undertaking a careful evaluation of their policies and programs related to background screening.
In most cases, such an audit would benefit from working with an expert in employment law to help them navigate these uncertain waters.