A Centralized Process for Individualized Assessments

defense-attorney-840062_640In 2012, the Equal Employment Opportunity Commission (EEOC) published guidance for employers making employment decisions for candidates or employees with criminal histories. The EEOC’s guidance sought to remind employers that they ought to analyze the nature, severity and age of the offense as well the relationship between it and the individual’s potential work duties before making employment decisions, particularly adverse employment decisions, as to candidates or current employees with criminal histories. Importantly, it made a never-seen-before recommendation that employers generally (though not in all circumstances) perform “individualized assessments,” including opportunities for candidates to explain or resolve their criminal backgrounds during the job selection process.

Four years later, however, specific directions for helping organizations successfully conduct individualized assessments have yet to be published. A recent compliance survey by my employer, First Advantage, determined that more than half of organizational respondents felt the individualized assessment process could be improved, and that their greatest concerns related to internal communication and documentation matters.

That’s probably for good reason, as many companies involve far too many people in their individualized assessment process. For multiple reasons, legal advisors instead counsel their clients to limit the people associated with only those who “need to know.” First, it promotes uniformity in how individualized assessments are conducted – and when it comes to mitigating hiring liability, consistency is key. Secondly, it makes the selection process faster and more efficient to have fewer people in the mix. And lastly, drawing a tighter circle around the individuals involved reduces liabilities even after the person is chosen, serving as an additional safeguard to make sure new or promoted employees aren’t treated differently or somehow retaliated against.

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What else should employers add to their individualized assessment process? A candidate-friendly method for how and when information is collected also becomes important. The Federal Trade Commission maintains that employers must give candidates at least five business days to provide additional information or dispute information from a consumer report. Some state and local ordinances require an even longer waiting period. For example, San Francisco requires seven business days and New York City mandates that employers wait three business days from the receipt of a pre-adverse action letter before taking any kind of adverse action. Many organizations wait even longer than mandates require. According to First Advantage’s benchmarking data, three percent of organizations wait longer than 10 days between the notice of intent to take adverse action and the actual adverse action notice itself.

The stakes of such matters can be significant. BMW recently settled a lawsuit brought forth by the EEOC alleging that it unfairly excluded African American workers from employment at a disproportionate rate when a logistics contractor applied BMW’s criminal conviction records guidelines to incumbent logistics employees. The move resulted in roughly 80 minority employees of a pool of 100 workers being let go in short order. As a result, BMW ultimately incurred$1.6 million in settlement fees and later agreed (via consent decree) to allow candidates 21 days to provide additional information throughout this process moving forward.

Last month, First Advantage’s produced a webinar, “Time to Benchmark Your Individualized Assessment Process,” which covered best practices and benchmarking data for conducting individual assessments in light of the EEOC’s general but not fully defined guidance. A replay for the interactive webinar provides insight from legal experts and from poll results involving 2,000 different companies.

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Bret Jardine

Bret Jardine
Bret Jardine is general counsel for First Advantage, a global provider of comprehensive background screening, identity and information solutions.

Bret Jardine

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