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BT Currents - Hot Topics in Employment Law
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11 Aug 2017 Survey Says: Almost All Employers Use Background Checks (and Other Notes on Pre-Employment Testing)

    As we sometimes do, we turn our attention to one of the monthly surveys from the Ohio-based Employers Resource Association (ERA). This survey focuses on a number of interesting questions about hiring trends as practices, such as who interviews applicants (24 percent of respondents have peers interview applicants) and what resources are used to find candidates (not surprisingly, online job boards leads at 89 percent).   More on the employment law side, I thought the question showing what percent of employers use various kinds…

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14 Sep 2015 Rollercoaster Week for EEOC Regarding Background Checks

Last week started poorly for the agency often criticized as overly aggressive, as a federal judge in Maryland ordered the EEOC to pay attorneys’ fees of nearly a million dollars for overplaying its hand. In EEOC v. Freeman, the agency sued a corporate events company for its background check policies, charging that those checks had a disparate impact on minorities. The problem arose when the EEOC brazenly pushed ahead with its case even after its alleged statistics expert’s report was thoroughly debunked by Fourth Circuit…

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25 Feb 2015 Choose Your Expert Wisely: Fourth Circuit Rejects EEOC’s Choice on Background Checks

Fans of the Indiana Jones series will remember the scene near the end of the Last Crusade where our hero is looking over a multitude of chalices to select the one true grail, and the ancient knight beside him warns: “Choose wisely.” When the bad guy pushes his way forward to pick out a pretty – but ultimately incorrect – cup, we find out the grisly consequences of choosing poorly. The knight’s admonition to “choose wisely” not only is good advice for selecting grails, but…

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13 Mar 2014 EEOC and FTC Team up to Offer Guidance on Employee Background Checks

The U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Fair Trade Commission (“FTC,” the commission responsible for enforcing the Fair Credit Reporting Act) have co-published two technical assistance publications – one aimed at employers and one aimed at employees and applicants – explaining how their rules apply to background checks used for hiring, retention, promotion, or reassignment purposes.   The EEOC confirmed that it is legal to ask questions about an applicant’s background as long as the questions do not discriminate on the basis of…

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08 Jan 2014 Facebook Background Checking: Shouldn’t Smart Applicants Check Their Privacy Settings?

I have written here and elsewhere that I think the trend in state legislatures to limit employers’ ability to look at social media has gotten out of hand. Very few employers are demanding Facebook and other social media passwords, so legislation limiting that “practice” may scratch an itch, but has little practical impact, at least until legislatures intentionally or inadvertently expand the scope of those statutes to restrict other less intrusive practices – such as looking at information that applicants and employees make publicly available!  It seems…

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13 Aug 2013 EEOC Not Faring Well in Background Check Disparate Impact Cases

The EEOC’s crackdown on the use of background checks has taken another body blow, this time delivered by federal Judge Roger Titus out of the District of Maryland. After a recent spate of adverse decisions in such cases (including cases against BMW Group and Kaplan Higher Education Corp.), national event planning company Freeman found itself in the agency’s cross-hairs. The opinion, granting Freeman summary judgment, can be found here.  While acknowledging that it is possible to prove a discriminatory disparate impact (here, against African-Americans and…

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13 Feb 2013 OFCCP to Focus on Criminal Background Checks

Alert to Federal contractors:  The Office of Federal Contract Compliance Programs (OFCCP) has added criminal background checks to its compliance checklist. On Jan. 29, 2013, OFCCP issued Directive 306, notifying federal contractors and subcontractors that use of criminal background checks to screen applicants for open positions may violate Title VII. OFCCP noted that because racial and ethnic minorities are arrested and convicted at a higher rate than whites, excluding job seekers based upon their criminal history may be discriminatory. OFCCP indicated its intent to follow the EEOC’s Enforcement Guidance on the use of arrest and conviction records issued on April 25, 2012. In that Guidance, EEOC noted that use of criminal background…

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