Mark Toth, chief legal officer at ManpowerGroup North America, discusses the Equal Employment Opportunity Commission's release of updated enforcement guidance on employers' use of individuals' arrest and conviction records to make hiring decisions. He also weighs in on conducting social media background checks on job applicants.

The EEOC acknowledges that 92 percent of employers use criminal background checks and that the practice doesn't necessarily violate Title VII of the 1964 Civil Rights Act, Toth explained during this email Q&A.

"However, the EEOC emphasizes that discrimination could occur in two main situations: when employers treat criminal history differently for different applicants based on race or national origin; and when seemingly neutral background check practices disproportionately impact protected classes," said Toth, a labor attorney at the Milwaukee-based firm that provides human resources services to Fortune 500 companies.

Bloomberg BNA: What are your thoughts on the EEOC's recent enforcement guidance on employers' use of criminal histories?

Toth: The guidance provides clarity on the EEOC's position and offers several practices that can help employers ensure they are doing things the right way by keeping the focus where it belongs: on job-related, non-discriminatory factors.

Some employers, however, are struggling with parts of the process recommended by the EEOC. The EEOC suggests that employers conduct an "individualized assessment" before deciding whether to exclude an individual from employment.

The EEOC suggests a three-step process in which the employer: (1) informs the applicant of a possible exclusion based on past criminal conduct, (2) provides the applicant the opportunity to show that the exclusion should not apply and (3) considers whether the assessment indicates that the policy should not be applied to the applicant.

Some employers have expressed that such a process could be unduly cumbersome and logistically difficult, especially in large-scale hiring efforts. While the EEOC explains that Title VII does not require an individualized assessment, it emphasizes that such assessments can help employers avoid liability by "allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity."

In other words, the EEOC seems to suggest that an employer who does not perform an individualized assessment before excluding an applicant may face greater scrutiny as to whether its actions were truly job-related and consistent with business necessity.

Another concern raised by employers is the EEOC's suggestion that an employer will not be able to shield itself from Title VII liability by relying on state or local laws prohibiting the employment of individuals with certain criminal convictions. Instead, an employer who excludes an applicant based on state or local law must still demonstrate that its actions are both job-related and consistent with business necessity.

Bloomberg BNA: How are you seeing employers use social media in the hiring and recruitment process while complying with federal EEO laws and regulations?

Toth: Social media background checks are fairly common these days and can range from individual hiring managers "Googling" a job applicant to contracting with a third-party to conduct comprehensive social media background checks.

This practice has left federal and state legislators scrambling to enact new laws in an effort to prevent employers from unduly intruding into an applicant's private matters. For instance, on Aug. 1, Illinois became the second state to pass a law banning companies from asking employees or job applicants for their login information for social networks. Maryland was the first state to pass such a law.

This does not mean that employers have given up using social media as a recruiting tool. Smart employers, however, understand the inherent risks associated with acquiring information in cyberspace that could relate to a candidate's protected class status.

Most employers are also aware that candidates should not be rejected solely for posting unflattering comments about their current employers or others on Facebook (which could constitute "protected concerted activity" in the view of the National Labor Relations Board). Employers who successfully use social media as a hiring tool have clear and consistent guidelines on how they use this information.

Many times, these companies limit searches to information that is publicly available. Another growing practice is to have searches performed by third-party experts rather than the employer or any of its decisionmakers. The third party screens out information the employer should not consider and takes steps to ensure that all searches are uniformly conducted.

Another growing trend is for companies to notify applicants of their search practices and to expressly state that social media searches are a part of that process.

Indeed, some state statutes, such as California's Investigative Consumer Reporting Agencies Act, arguably require notification whenever an employer obtains a report containing information regarding an applicant's character, general reputation, personal characteristics or mode of living--regardless of whether that information comes from a consumer reporting agency or an internet search.

Bloomberg BNA: What are a few federal court cases, especially EEOC-initiated litigation, that you are paying close attention to?

Toth: The EEOC is pursuing cases where it believes that an employer's use of applicant criminal histories is discriminatory. Earlier this year, the EEOC entered into a conciliation agreement with Pepsi for $3.13 million based on allegations that Pepsi discriminated against African-American applicants by considering criminal histories in the hiring process. A number of other cases, such as EEOC v. PeopleMark and EEOC v. Freeman are currently pending and involve similar issues. [Editor's Note: On Aug. 14, the U.S. District of Maryland ruled in EEOC v.  Freeman that the EEOC must sit for a deposition on the use of criminal background checks in hiring agency's employees.]  

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If you are interested in participating in a Q&A on enforcement actions, legal developments and news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs or have a suggestion for a Q&A topic, send an email to lbridgeford@bna.com. You can also follow me on Twitter @LCBridgeford.