Is your company vulnerable to a class action lawsuit? Unfortunately, for many transportation companies the answer might be “YES”.
With the 50th anniversary of the Civil Rights Act of 1964 approaching, the Equal Employment Opportunity Commission (EEOC) is stepping up their enforcement efforts and recently filed two new criminal record lawsuits – one in South Carolina, another in Illinois.
At the federal level, there have also been significant spikes in class action lawsuits under the Fair Credit Reporting Act (FCRA). These lawsuits have targeted alleged inadequate disclosure and authorization forms, and allegedly deficient procedures of providing candidates with the requisite “adverse action” notices.
Beyond these developments under federal law, state and local legislatures are also active in passing legislation to regulate inquiries into the use of criminal records and credit history information for employment purposes.
Many states have enacted “ban the box” laws that prohibit certain pre-employment questions about a job applicant’s criminal records.
With the flurry of new developments, transportation organizations of all sizes will benefit from an assessment of their employment screening programs to identify potential areas for improvement.
To prepare for an assessment, your company should form an “employee working group” to benefit from diverse work experiences, perspectives, expertise, and skill levels across multiple departments.
Be sure to include employees from human resources, recruiting, safety/security, legal, operations, information technology and finance. Next, designate one or more subject matter experts who can help facilitate an informed program-assessment by the working group. Then, conduct a study of the potential disparate impact of the company’s employment screening program.
Once the protocols and platforms for the program-assessment have been settled, consider the following questions for your working group:
- Is the company employment screening program decentralized or centralized? If decentralized, should criminal records be reviewed by trained and dedicated personnel at the home office only, rather than by personnel in the field?
- Do standards for evaluating candidates balance with various and sometimes competing business and legal considerations? (E.g. protecting employees, customers and assets; safeguarding the company’s reputation; complying with regulatory and contractual requirements; minimizing the risk of class action litigation and EEOC systemic investigations, etc.).
- Is overall integrity of the screening program maintained? Will field personnel still have access to the appropriate information needed to exercise discretion when selecting ex-offender job applicants for interviews?
- Does the employment screening program incorporate strategies and business logic to help mitigate potential and significant legal risks? Is the consideration of background information, including the candidate’s honesty, ordered strategically?
- Is the employment screening program appropriately documented? Are key documents such as job advertisements, interviewing guidelines and FAQs up-to-date, compliant and properly distributed?
- Can technology or automation be used to help fortify compliance with the company’s policies and procedures? Does your system prompt the user to confirm the company has the candidate’s proper authorization for the background check before the user can submit the order for a check?
As the laws continually evolve, it is important to take reasonable measures to keep current on regulation and to periodically assess pertinent changes in the legal landscape.
Take time to discuss these changes with either your in-house legal department or outside counsel to help ensure that your program does not have a disparate impact on protected class members.
Free Report: Checking in on Employment Background Checks
Are you in compliance with the EEOC, FCRA and Federal and State Requirements? Find out by downloading:
Checking in on Employment Background Checks