Do you have a blanket policy against hiring applicants with arrest or conviction records? If you do, you could get in trouble with the U.S. Equal Employment Opportunity Commission. The EEOC has targeted several large companies — including carriers — for failing to consider the possible discriminatory nature and disparate impact that their hiring policies may have.
The Truckload Carriers Assn. recently held a webinar that shared information with truck fleet managers on the latest legal developments and outlined practical ways fleets can minimize their risk of running afoul of the EEOC’s oversight and new initiatives.
The webinar was presented by Lana Batts, co-president of Driver IQ and former president of TCA and R. Eddie Wayland, TCA general counsel and partner, King & Ballow, specializing in labor law.
Batts told participants that EEOC employment guidance hasn’t necessarily changed, but there is a renewed emphasis on enforcement that should be of particular concern to trucking company management.
In April 2012, the EEOC published enforcement guidance on the consideration of arrest and conviction records in employment hiring. The premise of the guidance was that since minorities are arrested and convicted at higher rates than non-minorities — African-Americans and Hispanics are arrested at two to three times the rate of the general population – that the automatic exclusion of candidates with arrest or conviction records from employment is inherently racially discriminatory and will create a permanent unemployed class, Wayland said.
The EEOC guidance is not law, however EEOC is using its interpretation to bring lawsuits against companies. Recent EEOC lawsuits dealing with disparate impact of criminal background checks include:
- BMW and Dollar General for having hiring policies that are not related and consistent with business necessity and don’t take individual assessment into account.
- J.B. Hunt for having a blanket criminal conviction exclusion.
- Freeman for having disparate impact via the use of credit and criminal history as hiring criteria.
To avoid running afoul of EEOC’s guidance, Wayland recommends that trucking companies review and revise their hiring practices. A key concern is having any language on application forms that suggests “criminals need not apply.”
Some states and local government already have “ban the box” laws against having boxes on job application forms asking applicants to check if they have a criminal record.
Wayland said carriers should discard any blanket policies against hiring applicants with arrest or conviction records and need to demonstrate that background checks that exclude applicants that do have arrest or conviction records. The decision to not hire an employee with a criminal record should be job related and arising from a business necessity.
As an example of a problem, Wayland pointed out that the J.B. Hunt case dealt with a driver who wasn’t hired based on a conviction for animal cruelty related to dog fighting. EEOC said that conviction should have no impact on his ability to perform duties as a dry van truck driver.
Wayland points out, however, that if the driver were being hired for a position hauling livestock, the animal cruelty conviction could be a reason for denying him a job.
Wayland says carriers should use the following “Green Factors” for consideration of each job candidate and not treat all convictions the same for all employment positions:
1. The nature and gravity of the offense.
2. The dates of convictions.
3. The nature of the applicant’s position, including the duties involved, the job’s essential functions and the job environment.
4. Facts and circumstances surrounding the offense/conduct.
5. The number of offenses for which the individual was convicted.
6. Age at the time of conviction or release from prison (recidivism tends to decrease as ex-offenders age.)
7. Evidence that the individual performed the same type of work post conviction with the same or difference employer with no know incidents of criminal conduct.
8. Length and consistency of employment history before and after the offense or conduct. (Studies show a strong relationship between employment and decreases in recidivism.)
9. Rehabilitation efforts such as education, training, rehab treatment.
10. Whether the individual is bonded under a federal, state or local bonding program.
In light of increased EEOC enforcement efforts, Wayland suggests that all carriers draft a written policy and procedures for screening employees for criminal conduct and create “a relevance screen” that assesses specific offenses that may demonstrate unfitness for performing each job, for example an embezzlement conviction for a finance position or a DUI for a driving position.
Bottom line when it comes to the EEOC, he said, is if you currently have a policy to not hire anyone who has ever been arrested or convicted of a crime “you are automatically discriminating.”
