Carriers are required by the Federal Motor Carrier Safety Administration to take steps to prevent high-risk individuals from driving their trucks. Failure to do so can lead to huge liabilities. But an initiative of the Equal Employment Opportunity Commission may put a hamper on carriers’ efforts, according to Peter Kirsanow, a partner at Benesch, Friedlander, Coplan & Aronoff, LLP.
Speaking at roundtable session during the Truckload Carriers Association’s annual convention in Grapevine, Texas, March 24 titled “Hiring without Hitting and EEOC Land Mine,” Kirsanow said the problem stems from the EEOC’s pursuit of companies that use criminal background and credit history checks in hiring decisions. If your company has a blanket ban on hiring people with felony convictions, you are waving a “red flag” and may face civil actions from the EEOC.
While the EEOC may be overstepping its authority, Kirsanow said that has not stopped it from seeking multi-million dollar settlements.
It’s important for carriers to review their hiring policies and remove any bans on hiring convicted felons.
“If you have a blanket ban on felons in your hiring policy, get it out of your policy ASAP,” said Mark Gardner, CEO, AvatarFleet. “It’s a land mine that will blow up,”
It is probably a good idea to remove questions about prior criminal records from applications and instead, ask that question as part of the post-offer process, as with drug testing.
Gardner said carriers find themselves “on the one hand trying to follow EEOC rules and on the other trying to run a safe business.” And he noted that even if a company eventually wins in court, just to defend oneself can take several hundred thousand dollars. “You may win the war, but you’ve lost,” he said.
A good safeguard against EEOC complaints are for companies to adopt a compensatory hiring model: one that evaluates a number of factors in making hiring decisions. Such a model would go beyond the basic things fleets look at when hiring drivers such as age, CDL, MVR, drug-free status, education, work history and possible criminal record. Carriers should also rate applicants against other criteria as well, including the qualities that an ideal driver would exhibit, such as whether he or she would be safe, stable, capable, reliable, flexible, friendly, responsible, conscientious.
Back to the EEOC’s rules, Gardner noted that carriers want “risk-averse drivers” and want them to follow the rules. “What better indicator of lacking risk-aversion or the ability to follow the rules than a felony conviction?” he asked. If the rules prevent you from disqualifying someone based solely on their criminal record, “you need a scientific process.”
Companies need to make sure to market for those skills that the ideal driver would possess in their recruiting efforts. Gardner also recommends depicting the true nature of the job during recruitment: the good, the bad and the ugly.
After checking on the basic qualifications, companies can discover key values a person holds with standardized, pre-written questions that are objectively scored. Ask explicit questions tied to their past behaviors. Instead of giving a hypothetical such as “If you are driving and encounter such and such, what would you do,” ask “Have you ever encountered such and such while driving? What did you do?”
Ask for a criminal history check after you make a post-conditional offer, as with drug testing. At that point fleets can make their final offer based on all of the data they have collected while following EEOC rules.