Safety&Compliance: Beware these background screening pitfalls
If you're not careful about how you disqualify driver applicants based on background checks and felony convictions, you could land in hot water.
April 2013, TruckingInfo.com - Feature
If you haven't taken a look at your driver hiring and screening procedures in a while, it's time for a thorough review to avoid running afoul of the Equal Employment Opportunity Commission or the Fair Credit Reporting Act.
“There is a renewed emphasis on allowing people the opportunity to correct bad information, and if you're going to use public information to deny people employment, you need to make sure you're following the right protocols,” explains Lana Batts, a longtime trucking industry expert and co-president of Driver IQ, a new firm that provides hiring information for the trucking industry.
There are two main areas of concern here: how you're using information on felonies, and whether you're sending the required “adverse action” letter to candidates who were rejected based on background checks.
If you automatically disqualify any potential driver with a previous felony conviction, you could get yourself into trouble with the EEOC.
Last year, the EEOC issued new employment guidelines on hiring applicants with criminal records.
Automatically disqualifying someone because they have a felony on record could violate discrimination laws, because a greater proportion of minorities have criminal records.
There are two ways you need to address this:
• Be able to prove that you are only banning criminal conduct that is directly related to the job require ments; and
• Do one-on-one interactions with the potential employee and consider that individual's specific information about the nature of the crime, the time elapsed and the nature of the job.
“You have to give them the opportunity to explain what happened,” Batts says. “If you did something when you were 21 and you're now 50 and nothing's happened since, you're probably an honest citizen. You need to have some reasonable time frame in there.”
R. Eddie Wayland, attorney with King & Ballow, which has offices in Nashville and San Diego, says when it comes to previous convictions, in addition to time lapsed, “you have to run it against the job requirements and you have to do an individualized assessment. You talk to him and say, ‘OK, you were an ax murderer, but now you're out, why should we hire you?'”
“Whether you agree with it or not, a lot of this is just going through the process,” Wayland says.
The EEOC recommends removing checkboxes asking, “Have you ever been convicted of a felony?” from employment applications, Wayland says. Some states and cities have passed ban-the-box laws prohibiting it.
If you keep such a question on your application, he says, make sure there is a place for “If yes, please explain,” and have some type of disclaimer language assuring the applicant that checking the “yes” does not automatically disqualify him or her from consideration.
Adverse action letters
Tied into this whole idea of making sure applicants have a chance to explain things on their record is the post-adverse-action letter requirement.
The Fair Credit Reporting Act doesn't just cover credit; it also covers background check information. Under this law, you have to allow an individual to object to data or correct information you're using for hiring decisions if that information comes from a public source. To help accomplish this, companies must issue a pre-adverse-action letter and post-adverse-action letter.
Companies subject to Department of Transportation regulations have an exemption from the pre-adverse action letter regulations, if all the dealings with the applicant are done over the phone or via electronic means.
But if you decide not to hire that individual based on that background check, you have to issue a letter explaining why. That gives the individual a chance to respond if there are problems with the information.
Many trucking companies believe they are also exempt from the post-hiring requirement, but that's not true, say Batts and Wayland.
“Some fleets will say, ‘I just hired a more qualified candidate, so I don't have to send the letter,'” Batts says. “But if you've still got 10 trucks empty, you still have openings,” and the government will not accept the “more qualified candidate” excuse.
Wayland points out that the penalty for each violation of the law ranges from $100 to $1,000.
“'We've always done it that way’ is not a defense,” he says. “'Everyone else does it that way’ is not a defense.”
The post-adverse-action letter is not a new requirement, Batts says, but there's increased scrutiny of it at the federal level.
“It all comes back to you have to give somebody the chance to explain,” Batts says.
“I think there's a very interesting coming-together of two agencies that are saying, ‘You'd better look out.'”
Last year, HireRight, which the industry knows for its DAC driver screening services, agreed to pay $2.6 million to settle charges that it did not take adequate steps to verify the accuracy of criminal background checks as required by the Fair Credit Reporting Act.
The company did not admit to wrongdoing, but the Justice Department alleged that poor quality control led HireRight to include erroneous information in its reports, such as criminal offenses that had been expunged, multiple reporting of the same offense, or reporting information for the wrong person.
The increased scrutiny is not specifically directed at trucking, Batts says, “but given that trucking has such high hiring rates, because of the turnover, you've just got to make sure you're doing it right."