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EEOC Action on Criminal Background Checks and Summer Intern Hiring Info

First up, the EEOC has taken action that was mentioned in
its FY2013 strategic plan by more aggressively pursuing the use of criminal
background checks as a type of disparate impact discrimination- where a
facially neutral policy unfairly discriminates against people
in a protected
class.  Essentially, the EEOC argues that
the use of criminal background checks in the hiring process unfairly
discriminates against minority candidates. 
This stance is nothing new for the EEOC, as in 2012 the Commission
approved new guidance which deals with the use of arrest and conviction records
in background checks used in the hiring process.  In furtherance of this strategy, the EEOC
recently initiated lawsuits against BMW and Family Dollar alleging that their
use of criminal background checks unfairly discriminated against
African-American candidates in violation of Title VII. 

In the BMW case, the EEOC argues that the company’s use of background
checks to fire employees with certain criminal convictions is
discriminatory
.  The EEOC primarily is
concerned that the blanket exclusion does not make any type of individualized
assessment based on the severity or age of the conviction in question.  As such, the company’s policies led to the
dismissal of a number of African-American employees at one logistics center
(80% of the affected employees were African-American at a facility where 45% of
the employees were white).  In the Family
Dollar case, the EEOC simply claims that the company conditions all its job
offers on a clean criminal background check, which discriminates against
minorities.  Here, the company had a
large amount of non-white candidates rejected, and the EEOC claims the number
is statistically significant.  In order
to defend the lawsuit, the companies will need to show that their use of the
background checks is “consistent with a business necessity.”

Finally, here is some guidance regarding the
hiring of summer interns
.  With many (if
not most) businesses in the area utilizing some type of free or part-time labor
during the summer “intern season,” it seemed like a good time to post a link to
some helpful advice.  Basically, to keep
from violating the FLSA, the internship needs to be a “real” internship, with
training and educational components, and not one that purely benefits the
employees for whom the interns work. 
Companies can get into trouble where internships are just a way to get
unpaid temp labor for the summer, without any real substantive training
component.