Background checks on existing employees may cause heartburn...

Document created by 1002074 on Sep 21, 2015Last modified by 1002028 on Sep 27, 2015
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kevin.jpgFor BMW in South Carolina, the heartburn was in the amount of a $1.6 million settlement with the U.S. Equal Employment Opportunity Commission (EEOC) and 56 former employees.

 

The short version of what happened in this case was that BMW employed a number of staff through a contractor.  When BMW ended its relationship with that contractor, they suggested the new contractor look at the existing workers to fill the need.  The transfer of employees from one company to another included a background check on those existing employees.  The background checks revealed that a number of existing employees had criminal records that did not meet the criteria set forth by BMW.  Of that group of employees with unacceptable records, 80% were African-American.

 

The EEOC contended that "BMW excluded African-American logistics workers from employment at a disproportionate rate when the company's new logistics contractor applied BMW's criminal conviction records guidelines to incumbent logistics employees."  BMW barred these existing employees based upon their convictions without regards to the severity of the crime, or how much time had passed.  Of course, the courts and the EEOC have long held that you must follow the Green Factors when considering convictions in making your employment decisions.  The Green Factors come from the 1975  federal case of Green v. Missouri Pacific Railroad.  That case resulted in employers having to consider three factors when considering criminal convictions:

 

  • The severity of the crime, and
  • How much time has past since the conviction, and
  • How the crime relates to the job.

 

While the first two points of the Green Factors are relatively straight forward, the third point is harder to show for an existing employee.  How can you show a previous conviction matters when an employee has been on the job, and presumably doing a good job?

 

The EEOC has also been promoting this case as one of the first that test the guidelines outlined in their 2012 EEOC Enforcement Guidance.  In addition to monetary penalties, BMW is having to modify their background checking policies to include Individualize Assessments as presented in their guidance as well as re-instate up to 90 excluded employees.

 

A good general guideline to remember whenever considering convictions is to ask if the conviction is job related and is the action your're about to take consistent with business necessity.  Also, you should not consider arrest records...convictions only.

 

If you have questions about how Title VII of the Civil Rights Act of 1964 impacts your background checks please reach out to any member of our Advice and Resolution team.  To learn how CAI can help you remain in compliance with the federal laws related to background screening, please do not hesitate to contact Kevin W. von der Lippe at (336) 899-1150 or by e-mail at kevin.vonderlippe@capital.org.

 

 

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Capital Associated Industries Services Corporation is a licensed investigative agency, specializing in corporate pre-employment background screening. Our corporate agency license is BPN 001473P11.

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