If you’re in the business to hire drivers you already know the importance of compliance. Having a solid program to maintain and exceed compliance standards is key to avoiding unnecessary attention from regulatory authorities and employment rights lawyers. Discovering a logical and legal path to personnel background checks can be a frustrating and complex issue, so here are some key points to remember.
Many companies that hire drivers perform background checks as a necessity to maintain compliance, many more use third party employment services. Each arrive at obtaining a criminal background history and at times, a credit report, to assess their suitability for a position. How your company obtains and uses that information may create an undue liability. Laws regarding the Equal Employment Opportunity Commission and the Fair Credit Reporting Act specifically address the employer’s limits on the use of information. This includes felony arrests and how they should be considered in the hiring process so as to not discriminate.
No longer can an employer automatically base a hiring decision solely on an applicant’s felony arrest record. By doing so, they risk unwanted attention of the EEOC. That’s because the EEOC has deemed that arrest records can prevent employment of minorities, because that portion of the population has a greater propensity to have an arrest record. To use such information appropriately, employers must demonstrate that employment decisions do not constitute a racial “disparate impact”.
Therefore, you may only use felony arrest information that directly relates to the business. For example, a person who has a felony arrest for ‘Non-Payment of Child Support’ would not relate to the safety or security of an interstate OTR driver. However, a person arrested for ‘Burglary in the 2nd Degree’ could be related if it can be demonstrated in two ways. First to consider is time since the incident. The second factor is the nature of the employment. In other words, would the employee have an opportunity to harm the employer by means of his prior conduct (in this case, theft).
Note that simply having a box on your company’s application regarding felony arrests or convictions is not a good idea. The EEOC does not recommend the practice and some jurisdictions have ‘ban the box’ laws. It demonstrates the employer’s unwillingness to address people with felony arrest histories and therefore implied as discriminatory. If you do use a box, ensure that you follow up with a ‘If yes, please explain’ narrative portion along with language that informs the applicant that by checking yes it does not automatically disqualify the applicant from consideration.
Allow the person under consideration to explain the incident leading to the arrest and/or conviction. Remember, the employment decision must relate to the nature of the offense, the amount of time since the offense, and the nature of the employment. Although there is no concrete formula to determine an employee’s suitability, the employer must be able to defend a position if an adverse action is taken. If the arrest history shows a felony conviction of a ‘Robbery’ within the last year with a Suspended Imposition of Sentence then it’s defensible for the employer to exclude the employment consideration further for an interstate bus driver position but not necessarily for a truck mechanic position.
Additionally, the Federal Trade Commission, who regulates laws regarding the FCRA, has other requirements of those who use credit information in employment decisions. First, before an employer takes any adverse action, you must give the person being considered a copy of the consumer report, as well as a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” The person being considered should be provided with an opportunity to explain or correct any adverse information in the report.
If an adverse employment action is taken, the considered person must be informed that the consumer report was the reason for the rejection, the name and address of the company who sold the consumer report, that the company selling the report did not make the employment decision and cannot give reasons for it, and that the person has a right to dispute the accuracy or completeness of the consumer report, with an opportunity to get a free report within 60 days.
Federal law states that you must maintain records and copies of reports that led to employment decisions for 1 year, 2 years if you have a federal contract in excess of $150,000.00. Additionally, your company must maintain records of any case that is being investigated or brought to court for as long as the court case remains open.
To sum this up, these matters are often precarious for the small business owner and therefore could lead to unnecessary lawsuits if done incorrectly. My suggestion is to rely on a vendor that specifically addresses hiring truck drivers and is bonded. Request a sample protocol on the employment practice. You can also visit the EEOC website and the FTC regarding the FCRA to learn more.