Transcript Driver Screening

DRIVER SCREENING:
A BREAKDOWN OF TWO NEW
SOURCES OF LIABILITY
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 Scott
Anderson – VP Safety, Anderson
Trucking Service, Inc.
 Lana
Batts – Co-President, Driver iQ
 David
Robinson – Partner, Scopelitis,
Garvin, Light, Hanson & Feary
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
To hire quality drivers

To follow regulatory requirements
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
No direct supervision

Cargo theft liability

Violent crimes liability

Negligent hiring claims

Protect customers

Customer requirements
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
One of four US adults have been arrested or
convicted

6.5% have a felony record

One in 15 have gone to prison

700,000 individuals are released from prison
and millions are cycled through local jails
each year
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
Hard to hire drivers

Often not face-to-face

Quick turnaround needed
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


EEOC 2012 Enforcement Guidelines
Consideration for arrests and conviction
records for hiring
Bottom Line – More difficult to eliminate
criminals in hiring process
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
Class Action Cases
 Recent class action lawsuit against Consumer
Reporting Agency for $28 million with 700,000
plaintiffs on regarding stale criminal records
 Most plaintiffs were truck drivers
 Recent class action against Kmart for $3 million
with 65,000 plaintiffs failure to provide most recent
FCRA forms
 Administration

Fines
EEOC collected $354 million in fines in
administrative process
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Recent EEOC Guidance
 Recent FTC Enforcement
 Recent Class Action Lawsuits
 Obama Administration Predilection





Rules have not changed, but enforcement has
Looking for systemic violations
Looking for high profile violations
EEOC collected $354 million in fines in
administrative process
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 Using criminal records to screen potential
employees is seen as a civil rights issue
 Discrimination based on criminal record is not
in the original 1964 Civil Rights Act….
 But since 1969, the EEOC has investigated
cases where criminal records were used in a
discriminatory way, based on race or national
origin
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Some employers are unwilling to consider
recently incarcerated individuals.
 Convicted felons tend to be employed at a
much lower rate than non-criminals.
 Current incarceration rates:

 1 in 17 white men
 1 in 6 Hispanic men
 1 in 3 African-American men
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Effective April 25, 2012
 Represents the EEOC’s interpretation of the
law
 Does not have the force or effect of
regulations
 Intended to provide guidance as to how the
EEOC will interpret the law in its
investigations and administrative proceedings
 Office of Federal Contract Compliance
applying EEOC guidelines to haulers of
government traffic

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 Recent
class action lawsuit for $28
million with 700,000 plaintiffs on
same issues
 Stale records of criminal violations used to
deny employment
 Lack of contemporaneous notice to the
applicant
 Involved mostly truck drivers
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Job Description
 Applications
 Screening
 Post Screening

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Criminals need not apply
 No criminal checks unless breaks in
employment
 Reasonable Suspicion Criminal Checks
 Full criminal checks

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
Can you state it on the application?
 EEOC forbids the automatic rejection of the person
because he/she checked the box
 Only disqualifying the honest ex-offender

Can you ask on application?
 EEOC recommends not asking if a person has a
criminal record on the application
Many states and cities have passed, or are
considering “ban the box” legislation
 Last year’s Congress proposed a federal ban

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Criminals need not apply
 No criminal checks unless breaks in
employment
 Reasonable Suspicion Criminal Checks
 Full criminal checks

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 Federal
Study 12 months ending
9/30/2009 (US DOJ BJS Federal Justice
Statistics 2009)
 86,975
offenders (convictions)
 67,499 (or 77.6 %) sentenced to incarceration
o Of those, 51,639 (or 59.4%) had prior convictions
 19,482 (or 22.4% ) were not incarcerated
o 9,520 (or 48.9%) probation only (including 6,676
felons)
o 2,747 (or 14.1% ) fine only (including 289 felons)
o 7,215 (or 37.0%) suspended terms, jail time less
than 4 days, deportation, unknown disposition
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82.4%
16.1%
35.3%
35.3%
25.0%
4.4%
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Criminals need not apply
 No criminal checks unless breaks in
employment
 Reasonable Suspicion Criminal Checks
 Full criminal checks

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
Remember current incarceration rates:
 1 in 17 white men
 1 in 6 Hispanic men
 1 in 3 African-American men
Since1969, the EEOC has investigated
cases where criminal records were used in
a discriminatory way, based on race or
national origin
 Must be consistent in practice with strict
guidelines for recruiters – not just a feeling

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Criminals need not apply
 No criminal checks unless breaks in
employment
 Reasonable Suspicion Criminal Checks
 Full criminal checks

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Product of the internet age
Claim to have national scope
Quick and cheap
Neither accurate nor complete
Usually contain disclaimer that they
should not be used for hiring purposes
Not compliant with FCRA
Not recommended by EEOC
Beware of Social Media in light of Title
VII
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None is national
 No federal information on 94 district courts
 No information on 10 states
 Scattered information on the remaining 3,100
counties and 30,000 incorporated towns and
cities
Not considered current
 Updated at different times
EEOC now questioning whether stand
alone database searches are in
compliance with these deficiencies
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

Databases of criminal records that are not official
government repositories must only be used as
“pointers”;
Verify records found official government
repositories to ensure accurate, complete and up
to date information;

Consider requiring a minimum of 2 unique
identifiers (such as name and date-of-birth or
name and social security number) match the
candidate
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Audit your criminal background screening
process
1. Application
 Do not ask about arrests
 If you ask about convictions, consider
adding the following language: “A positive
answer to this question does not necessarily
eliminate you from further consideration”
 State laws
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2.
Make your screening process targeted
Eliminate any reference to a blanket
exclusion
Avoid permanent exclusions
Be able to show some nexus between the
job and the conviction
Consider:




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Job title
Essential functions
Circumstances under which job is performed
Nature and gravity of crimes
Relevance of crime to the position
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3. Allow for an individual assessment
Notice
Opportunity to explain or clarify
Consideration of additional information
 Facts surrounding offense or conduct;
 Number of offenses for which individual convicted;
 Age at time of conviction or release from prison;
 Evidence individual performed same type of work, post
conviction, with no known incidents of criminal conduct;
 Length and consistency of employment history before and
after offense or conduct;
 Rehabilitation efforts; and
 Employment references.
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Two areas of concern for motor carriers:

1. The Disclosure and Authorization Form

2. The Adverse Action Protocol
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 Clear and conspicuous disclosure
 In writing
 In a document that consists solely of the
disclosure
 Prior to the report be procured
 Applicant authorizes in writing
*
Motor Carrier Exception
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IF:


The applicant seeks a position as a driver,
driver’s helper, loader, or mechanic; and
The only communication with the applicant
has been by mail, telephone, computer, or
similar means – a “Remote Applicant”
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THEN:
 The carrier can provide oral, written, or
electronic notice to the Remote Applicant
that a background check will be obtained
and a summary of the applicant’s rights
under the FCRA; and
 The Remote Applicant can provide oral,
written, or electronic consent
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 Based in whole or in part on report
 Prior to taking adverse action
 Must provide (1) copy of report, and (2)
description of applicant’s FCRA rights
 Wait a “reasonable” period of time
 Send final adverse action notice
* Motor Carrier Exception
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IF:


The applicant seeks a position as a driver,
loader, or mechanic; and
The only communication with the applicant
has been by mail, telephone, computer, or
similar means – a “Remote Applicant”
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THEN:
 Motor carrier can send one notice to the
Remote Applicant (within 3 business days)
stating the following:




Adverse action taken
Contact information for Consumer Reporting
Agency
Consumer reporting agency did not make the
decision
Remote Applicant can obtain a copy of the
report
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Hall v. Vitran Express, Inc., Case No. 1:09cv-00800 (N.D. Ohio)
 class action
 settled for $2.6 million on August 21,
2011
Hunter, et al. v. First Transit, Inc., Case No.
09-cv-6178 (N.D. Ill.)
 class action
 settled for $5.9 million in March, 2011
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Kelvin Daniel, et al. v. Swift Transportation
Corp., Case No. 2:11-cv-01548- (D.C.
Arizona 2011)
 Class action
Pitt v. K-Mart Corp., Case No. 3:11-cv-00697
(E.D. Virginia)
class action
settled for $3 million on January 28, 2013
60,000 class members
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Audit your practices in this area
1. Is your authorization form valid?
 Stand-alone document
 Full disclosure that report will be used for
employment purposes
 Clear authorization
 Continuing authorization
 Signed by the applicant
 Does the Motor Carrier Exception apply?
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2. Are you complying with the adverse action
requirements?
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Train your personnel
Use a pre-adverse action letter
Implement a waiting period
Use a final adverse action letter
Does the Motor Carrier Exception apply?
Use the updated Summary of Rights under the
FCRA form (1/1/13)
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The game has changed -- Review all policies and
procedures carefully
Review all employment applications
Identify essential job requirements
Identify qualifying convictions
Verify criminal convictions from databases
Use a valid FCRA Disclosure and Authorization Form
Allow for EEOC’s individual assessments
Allow for FCRA’s post adverse action notices
Maintain records