February 10, 2014
Some carriers have policies that ban any applicant, including drivers, with a criminal background. Based on EEOC guidance, this can create serious legal problems. In a white paper co-authored with Mark R. Waterfill, Esq., a partner in the Labor & Employment and Litigation Groups of Benesch, Avatar CEO Mark G. Gardner makes these points:
• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decisionmakers 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.
– Identify essential job requirements and the actual
circumstances under which the jobs are performed.
– Determine the specific offenses that may demonstrate
unfitness for performing such jobs.
• Identify the criminal offenses based on all available evidence.
– Determine the duration of exclusions for criminal
conduct based on all available evidence.
• Include an individualized assessment.
– Record the justification for the policy and procedures.
– Note and keep a record of consultations and research
considered in crafting the policy and procedures.
• Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
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