Screening News Weekly Wrap: November 1st, 2019

Screening News Weekly Wrap: November 1st, 2019

By Tricia O'Connor

Sometimes innovation takes time. The screening industry is no exception. The EBI Screening News Weekly Wrap presented by Jennifer Gladstone has three stories years in the making but whose ripple effects are already flooding HR departments across the nation.

Dollar General Strikes Deal with EEOC

A recently settled long-running race discrimination lawsuit is a strong reminder that employers need to carefully examine how they analyze an applicant’s criminal history. When used improperly during the decision-making process, so-called “green factors” could indicate racial bias or other discriminatory practices. More on “green factors” coming up… but let’s back up and examine the case, the settlement, and steps you can take to avoid a similar lawsuit.

The Case

Eight years ago, the U.S. Equal Employment Opportunity Commission (EEOC) invited Dollar General to discuss the discount retailer’s hiring policies and potentially unlawful practices. The EEOC said the illegal hiring practices dated back to 2004. Dollar General did not take the EEOC up on its offer.

So, two years later in 2013 the EEOC filed a lawsuit against Dollar General alleging its background check policy discriminated against black applicants. Specifically, the EEOC said the process Dollar General used to weigh an applicant’s criminal history had a disparate impact on black applicants.

The lawsuit said Dollar General failed to consider “green factors” such as the applicant’s age at the time of the offense, the gravity of the crime in question, and if there was anything about that crime that would impact the job they were applying for.

The Settlement

Dollar General fought the lawsuit for six years saying the EEOC hadn’t given the retailer enough time to improve its practices.

The EEOC countered with proof that by ignoring the “green factors” 10-percent of black applicants were turned down for a job, compared to 7-percent of other applicants. This was deemed disparate impact, or intentional employment discrimination.

The two parties have settled, but details are not public yet.

The Implications

When analyzing criminal information as part of the decision-making process, employers should always be mindful of the EEOC’s “green factors”:

  • The nature or gravity of the offense or conduct
  • The time elapsed since the conviction and/or completion of the sentence
  • The nature of the job sought or held

“Employers using criminal history information within their decision-making process should develop a documented policy and process when evaluating such information to ensure compliance with EEOC regulations. Employers should always use an individual assessment for each candidate. Brightline policies could be problematic and aid in potential discrimination.”
Robert Capwell, Chief Knowledge Officer at EBI.

For more information on best practices, refer to the EEOC’s enforcement guide Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

EBI’s experts are also here to answer your questions about disparate impact or other potentially discriminatory hiring practices! Send your questions to “Ask an Expert” and we might feature it in an upcoming segment!


Want Unemployment Benefits? Pass a Drug Test.

The Trump administration has brought back a rule giving states the right to drug test unemployment applicants. Hours after the Department of Labor published the new rule, states were already gearing up to implement new drug testing guidelines for people seeking unemployment benefits. This is a major coup for the drug screening industry and employers who’ve wanted to implement drug testing.

EBI Screening News Network first reported this story last November, soon after Trump made the announcement. It’s a 180 swing from an Obama-era policy that restricted drug testing for unemployment claims. Under the old policy, states could only require you to pass an unemployment drug test if you’d been employed by a job that required drug testing or to employees fired for testing positive for drugs. These were usually safety sensitive positions like child caregivers, truck drivers, and law enforcement officers. The new rule expands the policy allowing states to drug test people of any profession who apply for unemployment.

Worker’s rights advocates call the change unconstitutional, yet some states like Wisconsin have been badgering the feds for years to institute the testing. Former Wisconsin governor Scott Walker first pushed to tie government assistance to drug testing. There is no timeline for implementing the testing yet. The Wisconsin Department of Workforce Development says it is still reviewing the new rules.

Here’s an EBI tip: A Medical Review Officer can help employers navigate a drug screening program. Even if employers are not guided by regulations requiring an MRO to oversee drug testing procedures, having an MRO on board is a wise move for the overall accuracy and integrity of your overall drug testing program.

Children Get Extra Layer of Protection

Would you believe it if we told you people assigned to protect children during custody exchanges in California were not background checked? Probably not, right?

Well, the stunning truth is that, until recently, these professional visitation monitors were NOT required to get screened. These monitors supervise contact between children and their parents in child custody cases where there is history of violence, substance abuse, mental illness, or risk of abduction. Monitors are responsible for transporting children, ensuring their safety, and documenting everything that happens during these visits. The fact that monitors weren’t screened doesn’t make sense when you consider California mandates background checks for other child safety positions like teachers, school volunteers, and daycare workers.

Turns out, we weren’t the only ones shocked by this discovery. The founder of children’s advocacy group, Change for Justice, sponsored a new law requiring background checks for all professional visitation monitors. Jennifer Moores also pushed for more advanced training for these monitors.

“Without this law in place, how are parents expected to know if they are entrusting their kids into safe hands? There was no question for us that professional visitation monitors who are often charged with maintaining our kid’s health and safety in high-conflict situations and who are responsible for transporting the children alone, should be required to have a background check.”
Jennifer Moores, Change for Justice

California Governor Gavin Newsom recently signed into law the bill sponsored by Change for Justice. This law will undoubtedly better protect the children already involved in difficult custody exchanges.

ICYMI: One trucker’s bad behavior behind the wheel cost his employer $54 million! Find out what important steps they missed (hint: it has something to do with what we do around here). The EBI Screening News Weekly Wrap has the story. Subscribe here.

About the Author

Tricia O'Connor

Tricia O'Connor

Writer. Digital marketer. Storyteller. An award-winning writer and editor, Tricia O'Connor is the Marketing Content Manager at EBI. Tricia worked as a broadcast and print journalist for nearly two decades writing and producing programming for high-profile networks like ESPN Radio, History Channel, and Hallmark Channel, as well as contributing editorial work to publications nationwide. Tricia joined the EBI marketing team in 2019 and is responsible for content strategy, development, and engagement. Tricia earned a master's degree in journalism from the Medill School of Journalism at Northwestern University and is a proud undergraduate alumna of Wheaton College in Massachusetts.

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