Tip of the Month: Business Necessitates in Background Checks Cover Temps Too

Sometimes during the course of placing a temp on assignment there is a tendency for the client company to forget or minimize certain co-employment legal issues.

Some of these are clearly established under law.  For example in Ohio a violation of specific safety requirement (VSSR) is the responsibility of the client.  Job related injuries to temps while under the direct supervision at the client’s location are to be recorded on the clients OSHA Log.  Family medical leave responsibilities are a joint responsibility of both the client and the temp services.

One area that is receiving more attention these days is the requirement that temps go through a background check before starting an assignment at a client location.

Often times the client will establish guidelines for the service to follow concerning checks that may be discriminatory.  This is important because the EEOC is taking a more aggressive approach in investigating claims of this sort.

On September 30, 2009 the lawsuit EEOC vs. Freeman was filed in Federal Court in Maryland.  The lawsuit contends that Freeman used credit and background checks that were not job related and subsequently discriminated against blacks and Hispanics.

The lawsuit is based on prior EEOC precedent that established that employers that use a “blanket” policy of not hiring any applicant with a history of arrests or convictions violate the act.  It goes on to say that policies like these disproportionately discriminate against certain racial and ethnic groups without a demonstrated business need present.

So, as an employer what are some of the things to consider as part of your background checking policy?

1. Consider the nature and seriousness of the offense.
2. How long ago the offense took place.
3. The nature of the job in relation to the offense. 

Some things to keep in mind when using background checking information during the hiring process include:

1. Employers may not ask questions about arrests or detentions that did not result in convictions
2. Employers my not consider crimes that have been sealed or expunged.
3. Certain restrictions apply to misdemeanors
4. Federal and state laws my contradict one another and should be reviewed.

The bottom line is that felony-free workplace policies under the EEOC are illegal.  Employers are permitted to use convictions on the basis of “Business Necessity”.

Remember, mandating your staffing service to use background checking policies that do not meet these EEOC guidelines exposes your company to possible legal action as well as the Staffing Service.

For more information see the EEOC policy guidance policy on arrest or conviction records.  As always, seek legal counsel before placing any hiring policy in place.