A major retailer faces a lawsuit from a prison ministry organization and a job applicant who allege the employer’s application process discriminates against individuals with a criminal history.
According to the lawsuit, the retailer applies an overly-strict process of eliminating any individual with a criminal history, regardless of the nature of the crime or when it occurred. As a result, the screening policy “disproportionately disqualifies Black and Latinx applicants and employees from job opportunities.”
The case involves one qualified applicant who received a job offer, only to have the retailer rescind the offer when her criminal background check revealed a traffic-related misdemeanor conviction from 10 years prior. Brianna Smith “Macy’s Hit with Discrimination Lawsuit Over Criminal History Screening Policy” www.legalreader.com (Jun. 28, 2019).
Commentary and Checklist
A thorough screening process is a best practice for any employer hoping to hire a new employee. This can include credit checks (depending on the job position); interviews with personal references; interviews with professional references; skills testing; medical testing (post-offer); and a criminal history background check.
Criminal background reports will disclose both arrests and convictions of felonies and misdemeanors. They also reveal court records, warrants, sex offenses and incarceration records. However, employers need to tread carefully when using this information to make employment decisions.
The Equal Employment Opportunity Commission (EEOC) encourages employers to avoid blanket practices that exclude people from employment based on criminal record, and instead manage each applicant on a case-by-case basis. Employers should consider the nature and gravity of the crime, when it occurred and the nature of the job. Also, employer should give the applicant an opportunity to respond to the report and their past criminal offense.
Also, keep in mind that many states have passed “Ban the Box” laws that prohibit inquiring about criminal records on a job application form. This is to enable an applicant to make it through the interview process, perhaps as a finalist, and then to have their past offense evaluated for any relevancy to the job under consideration now.
Here are further considerations to help employers limit the discrimination risk associated with criminal background checks in the hiring process:
- Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct using the EEOC’s Enforcement Guidance and individualized assessments. https://www.eeoc.gov/employers/smallbusiness/facts/tips_criminal_records.cfm; https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
- Identify essential job requirements and the actual circumstances under which the jobs are performed and determine the specific criminal offenses that may demonstrate unfitness.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Document any determinations made regarding an applicant’s criminal record, and the justification for your employment decisions.
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job-related and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential and only use the information for the purpose for which it was intended.
Written exclusively for ChubbWorks, the employment practices liability carrier for MJ Sorority, January 21, 2020.
ChubbWorks (www.chubbworks.com) is a critical component of Chubb’s Employment Practices Liability Loss Prevention Program. This free Web site, created specifically for Chubb employment practices liability customers, is an on-line resource for companies seeking assistance with employment issues. ChubbWorks offers self-registration, web-based training modules, model employment policies, procedures, and forms, a checklist database, as well as access to an extensive library of employment articles and valuable publications.
Follow the following easy steps to enroll and to get the most of the training features:
- Choosing a site administrator: The site administrator is the person who oversees ChubbWorks for your organization and is the first person to register onto the site. He/She has access to the training records for his/her organization and is often someone who works with personnel, personnel legal matters, and/or training matters. The original site administrator may add other site administrators later if there is a need to share this duty.
- Completing registration: The Site Administrator should initiate enrollment to ChubbWorks by visiting www.chubbworks.com. Within the log-in box click on REGISTER. This will prompt you to enter a password, which is your Chubb EPL policy number. Refer to your Insurance Overview or contact your Client Executive for your EPL policy number. Complete the information fields requested and create a personal password for future use.
- Recruiting additional users: Once logged in, the Site Administrator may extend an invitation to employees and volunteers within the organization to enroll in ChubbWorks by opening the Control Panel. Within the Control Panel click on Recruit New Users. Enter the email addresses of each invitee separated by commas. These employees will receive an invitation via email asking them to enroll in ChubbWorks. They can then self-register with the password received within the email, and later create their own personal username and password for future use.
- Using web-based training for supervisory personnel: Once an employee registers for ChubbWorks they are automatically assigned web-based training modules which are due within 30 days. If the Site Administrator wishes to adjust these training dates they may do so within the training section of the Control Panel. All users will receive automatic email reminders regarding the training due including due date.
- Accessing and completing training: Employees can log into ChubbWorks at any time by using their personal username and password. Once logged on, user clicks on Training to bring up a list of training due. He/She then selects the lesson to be taken. Each training module has complete instructions and a link to contact the Trainer if the trainee has any questions. In order to complete a lesson, a trainee must achieve a perfect score on that lesson’s quiz. A trainee is given several chances to change incorrect answers before he/she is directed back to the section of the lesson where the answers can be found. There is no limit on the number of times a trainee can review the lesson; the goal is to understand all the major points before moving on to the next lesson.
- Training records: The Site Administrator(s) has exclusive access to training usage reports, including how many lessons employees have completed. The Site Administrator accesses this information under the Control Panel. Select Reports for an overall view. To check the training records of an individual, go to Users under the Control Panel. Choose Add/Edit Approved Users and click Edit next to the name of the employee and then View Training History. Reports can be exported to Microsoft Excel and printed and/or saved to your hard drive.
Risk control doesn’t start when an employee begins work – it starts with the job itself. View Travelers’, the insurance company for MJ Sorority clients, collection of resources to help you attract and hire employees in your organization.
We are seeing an increase in an exposure that is not as we had previously presented to the insurance company regarding the type of the individuals who are serving as House Directors. The conventional understanding has been that the individual is a single female performing this function of overseer of the property on behalf of the house corporation and the chapter.
We are now uncovering an environment which is quite contrary to this scenario. We have seen examples of the following:
- Single Female with a child
- Husband and Wife Couple
- Single Male
- Husband and Wife Couple, expecting a child
The role of the House Director is to be the one individual who can be responsible for the management of the chapter house which includes, but is not limited to, the safety and security of the members and the physical property. This is a 24-hour job and this individual plays a substantial role in minimizing the exposure in the liability and property risks. This is indeed a big job that needs the time and attention given to it that only a single person can do. Having a husband or worse yet, a child on the property is, in our opinion a huge distraction, just on the issue of work performance alone, let alone the increased liability exposure.
The liability exposure is severe for the following reasons based on the type of exposure:
Male:
- Security issues with 18-21 year old women. A male house director, presumably, would have constrained use of the facility just as any other male.
- Potential for this individual to be considered an “employee” of the chapter or house corporation, and be eligible for what is 24 hour Worker’s Compensation coverage.
- Potential for the fraternity or sorority’s general liability policy to be responsible for any injury while on the premises. Unlike the volunteers and members of the fraternity/sorority, they can not recover both the medical payments and the bodily injury benefits. This becomes a huge issue for us because, in essence, we are taking a general liability policy which has been priced accordingly and turning it into a “health insurance” policy for the individual. The rate increases of health insurance coverage over the last five-six years could also become what we see in the General Liability area.
- Potential exists that he could be construed as an “agent” (both as an employee and/or as a volunteer) of the fraternity/sorority and your policy would have to defend his actions.
Child:
- Chapter property does not contemplate infants/children and all those associated concerns about safety of the child.
- Potential for the fraternity/sorority policy to become a health insurance policy for the child should he/she be injured while on the property. We have had such a claim already from one of our clients who had a four-year-old in residence.
- Injuries to children are especially detrimental to a client’s loss ratio because the insurance company keeps claims involving children under eighteen open until the child reaches the age of maturation (typically either 18 or 21) for the state in which the injury took place.
The insurance underwriters do not support the presence of single male House Directors. In the case of a married House Director whose husband wants to live in the chapter house, we ask that you use the sample employment contracts on our website. We have one in which the House Corporation/Chapter is hiring both the husband and wife, and one in which the House Corporation/Chapter is only hiring the woman. Employing a House Director’s husband has not only far-reaching liability ramifications and workers’ compensation concerns, but it is also a matter of tax implications.
In addition, we cannot allow any children of House Parents/House Directors to live in the facility. We ask that no exceptions be made for this exposure.
We welcome your comments and hope to continue to keep our policy “contemporary” to the collegiate landscape as it changes. The above guidelines will be further refined after we have had an opportunity to gain some additional insight from our clients on this important matter.
We understand that this is a difficult issue to tackle, and we want to help you determine how best to manage this risk. Should you have any further questions, please do not hesitate to contact us.
ChubbWorks (www.chubbworks.com) is a critical component of Chubb’s Employment Practices Liability Loss Prevention Program. This free Web site, created specifically for Chubb employment practices liability customers, is an on-line resource for companies seeking assistance with employment issues. ChubbWorks offers self-registration, web-based training modules, model employment policies, procedures, and forms, a checklist database, as well as access to an extensive library of employment articles and valuable publications.
Follow the following easy steps to enroll and to get the most of the training features:
- Choosing a site administrator: The site administrator is the person who oversees ChubbWorks for your organization and is the first person to register onto the site. He/She has access to the training records for his/her organization and is often someone who works with personnel, personnel legal matters, and/or training matters. The original site administrator may add other site administrators later if there is a need to share this duty.
- Completing registration: The Site Administrator should initiate enrollment to ChubbWorks by visiting www.chubbworks.com. Within the log-in box click on REGISTER. This will prompt you to enter a password, which is your Chubb EPL policy number. Refer to your Insurance Overview or contact your Client Executive for your EPL policy number. Complete the information fields requested and create a personal password for future use.
- Recruiting additional users: Once logged in, the Site Administrator may extend an invitation to employees and volunteers within the organization to enroll in ChubbWorks by opening the Control Panel. Within the Control Panel click on Recruit New Users. Enter the email addresses of each invitee separated by commas. These employees will receive an invitation via email asking them to enroll in ChubbWorks. They can then self-register with the password received within the email, and later create their own personal username and password for future use.
- Using web-based training for supervisory personnel: Once an employee registers for ChubbWorks they are automatically assigned web-based training modules which are due within 30 days. If the Site Administrator wishes to adjust these training dates they may do so within the training section of the Control Panel. All users will receive automatic email reminders regarding the training due including due date.
- Accessing and completing training: Employees can log into ChubbWorks at any time by using their personal username and password. Once logged on, user clicks on Training to bring up a list of training due. He/She then selects the lesson to be taken. Each training module has complete instructions and a link to contact the Trainer if the trainee has any questions. In order to complete a lesson, a trainee must achieve a perfect score on that lesson’s quiz. A trainee is given several chances to change incorrect answers before he/she is directed back to the section of the lesson where the answers can be found. There is no limit on the number of times a trainee can review the lesson; the goal is to understand all the major points before moving on to the next lesson.
- Training records: The Site Administrator(s) has exclusive access to training usage reports, including how many lessons employees have completed. The Site Administrator accesses this information under the Control Panel. Select Reports for an overall view. To check the training records of an individual, go to Users under the Control Panel. Choose Add/Edit Approved Users and click Edit next to the name of the employee and then View Training History. Reports can be exported to Microsoft Excel and printed and/or saved to your hard drive.
If you need assistance, ChubbWorks is ready to respond.
Simply click on the Contact link, which is located in the upper right-hand corner of each page.
Use the contact button for any questions regarding ChubbWorks, and a representative will respond in less than 48 hours.