DRIVER SCREENING: A BREAKDOWN OF TWO NEW SOURCES OF LIABILITY 1

DRIVER SCREENING:A BREAKDOWN OF TWO NEWSOURCES 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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Speakers

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To hire quality drivers

To follow regulatory requirements

Quality Background Check Process

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No direct supervision

Cargo theft liability

Violent crimes liability

Negligent hiring claims

Protect customers

Customer requirements

Criminal Background Checks

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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

Labor Pool Has Changed

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Hard to hire drivers

Often not face-to-face

Quick turnaround needed

Background Check Complication

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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

Criminal Checks Complication Has Increased

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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

Agencies Making a Splash

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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

Why Review Current Practices?

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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I. EEOC Enforcement Guidance on the Consideration of Arrest and

Conviction Records in Employment Decisions Under Title VII

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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Can You Deny Employment to Convicted Felons?

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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What is the Effect of the Enforcement Guidelines?

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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Recent FTC Class Action Lawsuits

Job Description Applications Screening Post Screening

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The New Reality

Combination of Obama Administration, EEOC, FTC, and Class Action Law Suits Require Review of Hiring Processes

Criminals need not apply No criminal checks unless breaks in

employment Reasonable Suspicion Criminal Checks Full criminal checks

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Review of Current Carrier Practices

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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

“No Criminals Allowed”



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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 incarcerationo Of those, 51,639 (or 59.4%) had prior convictions

19,482 (or 22.4% ) were not incarceratedo 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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How Do You Know Someone Has Been Convicted?

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82.4%16.1%

35.3%

35.3%

25.0%

4.4%



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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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Reasonable Suspicion



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Product of the internet ageClaim to have national scopeQuick and cheapNeither accurate nor completeUsually contain disclaimer that they

should not be used for hiring purposes

Not compliant with FCRANot recommended by EEOC

Beware of Social Media in light of Title VII

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Internet Sites

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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Database Only Searches

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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Database Plus Verification

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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STEPS TO TAKE NOW

2. Make your screening process targetedEliminate any reference to a blanket

exclusionAvoid permanent exclusionsBe able to show some nexus between

the job and the convictionConsider:

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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STEPS TO TAKE NOW, cont.

3. Allow for an individual assessmentNoticeOpportunity to explain or clarifyConsideration 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; andEmployment references.

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STEPS TO TAKE NOW, cont.

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Two areas of concern for motor carriers:

1. The Disclosure and Authorization Form

2. The Adverse Action Protocol

II. New Attacks Under the Fair Credit Reporting Act

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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

1. Disclosure And Authorization Form

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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”

Motor Carrier Exception

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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

Motor Carrier Exception, cont.

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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

2. Adverse Action Protocol

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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”

Motor Carrier Exception

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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

Motor Carrier Exception, cont.

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Hall v. Vitran Express, Inc., Case No. 1:09-cv-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

Cases Of Concern

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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 actionsettled for $3 million on January 28, 201360,000 class members

Cases of Concern, Cont.

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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?

Steps To Take Now

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2. Are you complying with the adverse action requirements? 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)

Steps to Take Now, cont.

1. The game has changed -- Review all policies and procedures carefully

2. Review all employment applications3. Identify essential job requirements4. Identify qualifying convictions5. Verify criminal convictions from databases6. Use a valid FCRA Disclosure and Authorization

Form7. Allow for EEOC’s individual assessments8. Allow for FCRA’s post adverse action notices9. Maintain records

Review of Discussion

Documents

DRIVER SCREENING: A BREAKDOWN OF TWO NEW SOURCES OF LIABILITY 1