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Navigating the Increasingly Treacherous Waters of Pre-Employment Background Checks: Challenges for Employers and Potential Bounties for Employees

Product Code - LGA175
Speaker(s): Philip L. Gordon, Littler Mendelson P.C.; Barry A. Hartstein, Littler Mendelson P.C.; Adam T. Klein, Outten & Golden LLP
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Once a backwater of legislative activity, regulatory enforcement, and private litigation, pre-employment background checks have taken center stage. Beginning in early 2012, legislators around the country have imposed new, far-reaching, and maddeningly varying restrictions on the use of criminal history, credit information, and social media for employment purposes. In a particularly notable development, local governments including Buffalo, New York; Newark, New Jersey; Philadelphia, Pennsylvania; and Seattle Washington, added a new level of complexity to this legislative patchwork. At the same time, the Equal Employment Opportunity Commission (EEOC), following on its issuance in April 2012 of new guidance on the use of criminal history for employment purposes, is aggressively investigating and litigating the allegedly discriminatory impact of background check standards designed to screen out ex-offenders and applicants with poor credit. The plaintiffs’ bar has taken note, catalyzing a spike in private, background check-related litigation.

In this program, three seasoned veterans, who represent both the employer’s and plaintiffs’ perspectives, will describe these new developments; explain their practical implications; and identify key steps for responding. Please join us for an engaging and enlightening discussion of this white hot topic.

Educational Objectives:

• Understand new state and local restrictions on criminal history and credit checks and their implications for the hiring process.
• Learn how to use social media in pre-employment screening without violating new “social media password protection” laws.
• Gain key takeaways from the EEOC’s April 2012 Guidance on the use of criminal history for employment purposes.
• Discover the EEOC’s new enforcement agenda and recent litigation activity.
• Understand how the plaintiff’s bar is taking aim at employers’ hiring practices, including both EEO and Fair Credit Reporting Act (FCRA) litigation.
• Find out about recommendations for restructuring hiring practices to reduce enforcement and litigation risk while maintaining an effective background screening program.

Who would most benefit from attending this program?

Labor and employment attorneys, human resource professionals, in-house counsel, and privacy counsel.

Program Level: Intermediate.

Credit Available: CLE. For more information, please click on the “CLE Credit” tab.

Philip L. Gordon, Littler Mendelson P.C.; Barry A. Hartstein, Littler Mendelson P.C.; Adam T. Klein, Outten & Golden LLP

Philip L. Gordon, Littler Mendelson P.C.
Philip Gordon is a shareholder in the Denver office of Littler Mendelson, P.C., the nation’s largest law firm representing management in employment and labor law matters. He serves as Chairman of the Firm’s Privacy and Data Protection Practice Group. Mr. Gordon regularly counsels clients on the full range of workplace privacy and data protection issues, including background checks; monitoring employees’ electronic communications and social media activity; regulating new technologies in the workplace; compliance with HIPAA and other federal, state and international data protection laws; and security incident preparedness and response.

Mr. Gordon sits on the Advisory Board of Bloomberg BNA’s Privacy & Security Law Report and has served on the Editorial Board and Educational Advisory Board of the International Association of Privacy Professionals. His blog on workplace privacy issues may be found at Mr. Gordon earned a J.D. from New York University School of Law and a B.A. from Princeton University. He is admitted to practice in Colorado.

Barry A. Hartstein, Littler Mendelson P.C.
Barry Hartstein has earned a national reputation for a career that includes more than 30 years of counseling and representing employers in a broad range of labor and employment matters. He is a frequent writer, commentator and lecturer on workplace issues. He also has extensive experience as a litigator and has defended employers nationwide in individual and class action claims and wage and hour collective actions. He has particular expertise dealing with the EEOC on both a local and national level, which included a recent invitation by the EEOC Chair to address the Commission at a recent meeting in Washington, D.C. on the legal standards governing employers’ consideration of criminal arrest and conviction records.

Mr. Hartstein also serves in numerous leadership roles for Cornell University's ILR School. Founded as the School of Industrial and Labor Relations, the ILR School today is the world's leading college focused on work, employment and labor issues. In addition to his position on the Dean's Advisory Council and as a board member of the Scheinman Institute, which is the first institute exclusively focused on the study and practice of workplace dispute resolution, he recently completed his term as president of the Alumni Association.

A shareholder in Littler Mendelson's Chicago office, Mr. Hartstein heads the Equal Employment Opportunity Commission’s core practice group, which is part of the firm's Discrimination and Harassment practice. Prior to joining Littler, he was the managing partner of the Chicago office of a major Am Law 100 firm, where he also served as Chicago practice leader for the firm's labor and employment practice.

Mr. Hartstein earned a J.D. from Northwestern University School of Law and a B.S. from Cornell University. He is admitted to practice in Illinois and California.

Adam T. Klein, Outten & Golden LLP
Adam Klein is a partner of Outten & Golden LLP and is the chair of the firm's Class Action Practice Group. His practice focuses on the prosecution of class actions and impact litigation of employment discrimination and wage and hour claims.

Mr. Klein often serves as lead or co-lead plaintiffs' counsel in major class action lawsuits involving discrimination claims in the financial services industry and challenges to the use of credit and criminal history records for employment decisions. He also prosecutes wage and hour class/collective actions against numerous major corporations and was counsel in major settlements involving many Fortune 500 companies.

In addition, Mr. Klein has served as co-lead plaintiffs' counsel in nationwide discrimination class action lawsuits involving gender and race. Two of his recent major cases are now settled, and each settlement provides class members with substantial monetary relief and creates systematic changes to company practices. Mr. Klein also served as co-lead plaintiffs' class counsel in a "glass ceiling" gender discrimination class action based on discrimination in promotions and compensation, which resulted in a settlement that created beneficial changes in the company involved.

Mr. Klein was recently selected for inclusion as one of the Lawdragon 500 leading lawyers in America. He was selected by his peers for inclusion in Best Lawyers in America and New York’s Super Lawyers – Manhattan Edition and as a leading lawyer by the Legal 500.

Mr. Klein earned a law degree from Hofstra University and an undergraduate degree from the School of Industrial and Labor Relations at Cornell University. He is admitted to practice in New York as well as the federal Second, Ninth, and Eleventh Circuits and the U.S. District Courts for the Southern, Eastern, and Western Districts of New York.

This program’s CLE-credit eligibility varies by state. Bloomberg BNA is an accredited provider in the states of New York*, California, Pennsylvania, Texas and Virginia, and most other jurisdictions grant CLE credit on a per-program basis. At this time, Bloomberg BNA does not apply directly to the states of Florida, Rhode Island, Montana and Hawaii although credit is usually available for attorneys who wish to apply individually. Additionally, the following states currently do not grant credit for Bloomberg BNA OnDemand programming: Arkansas, Ohio, Nebraska, and Delaware. All requests are subject to approval once the live webinar has taken place or the customer has viewed the OnDemand version. Please contact the Bloomberg BNA accreditations desk if you have specific questions that have not been addressed.

If you have further questions regarding a specific state or how to file for CLE credit, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditation Coordinator.

Hardship Policy
For information regarding Bloomberg BNA’s Hardship Policy, please visit the Continuing Education Information page.

For more information about Mandatory or Minimum Continuing Legal Education (MCLE) requirements, visit the American Bar Association website at

*Bloomberg BNA is an accredited provider in New York for experienced attorneys only.