Maryland Business Law Blog

Would the EEOC Like Your Employment Test?

Posted by Edward Sharkey on Wed, 02/10/2016 - 05:00

A lot of businesses test prospective employees. Pre-employment tests typically assess cognitive skills, personality traits, and language proficiency - all sorts of information that a reasonable business would want to know before adding a person to their team. Intuition or common sense, however, is not the legal standard. The EEOC looks at such tests pretty closely. They are interested in whether a test could have an outsize impact on any group protected by Title VII of the Civil Rights Act.

In one 2015 lawsuit, the EEOC alleged that an assisted living facility administered a pre-employment test that intentionally discriminated against African applicants. The EEOC claims that the written examination did not adequately assess essential job skills and contained questions known to confuse individuals who did not grow up speaking English. Additionally, the EEOC claimed that African applicants were not given partial credit for partially correct responses.

In a different case, Target will pay $2.8 million dollars to settle an EEOC finding that three of their employment assessments for upper level positions screened out applicants based on race and sex. One of the tests required applicants to undergo a psychological evaluation prior to receiving an offer of employment. As part of the settlement, Target has discontinued the use of tests and implemented procedures to analyze the impact of pre-employment tests on protected groups.

If your business uses pre-employment tests to evaluate job candidates, ask yourself the following:

1. Does the test actually measure skills essential to the job?

2. Do I have a system in place to analyze the impact of the test on protected groups?

3. Have I properly trained test administrators to understand and mitigate the potential for adverse impact?

4. If the test is found to have an adverse impact on a protected group, is there an equally effective alternative assessment that has less of an adverse impact?

If you are unsure of the answer to these questions, you may find it hard to defend against a prospective employee who complains about not being hired after having to take the test.

What Does the DOJ Say About Responding to Data Breach?

Posted by Edward Sharkey on Thu, 01/28/2016 - 05:00

We previously posted about the importance of developing cybersecurity policies that include early detection mechanisms and thorough response plans. That post highlighted the potential damages that a business could be liable for if it is the victim of a data breach. These damages range from the expense of notifying affected individuals to the intangible harm done to its reputation. Big companies like Target and Michaels are often able to shoulder these consequences and carry on. For small businesses, a substantial data breach could prove disastrous.

The newly formed Cybersecurity Unit of the Department of Justice issued guidance on how organizations and businesses can effectively prevent and respond to potential data breaches. The guidance outlines steps to take before a data breach occurs and steps for responding to a data breach after the intrusion. Significant steps recommended by the unit include:

1. Identifying your business’ most critical data, assets, and services to determine which areas warrant the most protection;

2. Creating an actionable data breach response plan that includes lead responsibility designations, protocols for properly preserving data related to the intrusion, policies for notification of affected individuals, and policies for notifying law enforcement and/or a computer incident-reporting organization;

3. Obtaining access to the technology and services needed to respond to a data breach such as off-site data back-up, intrusion detection capabilities, and data loss prevention technologies;

4. Obtaining appropriate authorization to monitor your business’ network;

5. Maintaining relationships with experienced legal counsel, appropriate law enforcement agencies, and cyber information sharing organizations; and

6. Ensuring that your business’ data breach response plan aligns with existing human resource policies in order to decrease the risk of inside threats.

Exposure to data breaches will likely continue to increase. Taking proactive steps to protect your business’ most valuable data and developing a thorough response plan will help to mitigate damages and minimize liability should your business become the victim of a cybersecurity attack.

Can a business weed out convicted felons when hiring?

Posted by Edward Sharkey on Thu, 10/22/2015 - 15:33

We frequently post about the EEOC’s campaign against employers who use criminal background checks during hiring. Apple recently came in for national criticism for their policy prohibiting convicted felons from working on the construction of the company’s new 2.8 million square foot campus. Prior felony convictions cost several construction workers their jobs on the project. Is there a prohibition against weeding convicted felons out of your hiring pool?

The EEOC has issued guidelines providing that any exclusionary practice that is not job-related and consistent with business necessity may be against the law.

This broad language leaves a lot of room for interpretation. The EEOC gives an example, but it simplifies an issue that often is more complex in the real world. In the example, the EEOC concedes that it is okay to exclude a convicted sex-offender from a job at a pre-school. That strikes us as an easy case. What about hiring a convicted batterer for a landscape crew? Or hiring a tax cheat for the cash register?

The EEOC provides recommendations for crafting a compliant policy. The recommendations assume the availability of resources to manage compliance with what is only one of the many government requirements that businesses face. Among other things, employers should:

1. Develop a clear written policy and procedure for screening and interviewing potential employees with criminal records;

2. Identify the actual job requirements of all company positions and justify why specific criminal convictions demonstrate unfitness for each position;

3. Include an individualized assessment as a part of the screening procedure, taking into consideration any potential mitigating circumstances surrounding the applicant’s conviction; and

4. Maintain a record of all research done in crafting your company policy in an effort to demonstrate due diligence.

If you have a multi-person HR office, this will be a nice project for them. If you don't, you must manage on your own, trying to cobble together a solution that accounts for your interest in being fair, your responsibility to your customers and other employees, and the risk that your government will make an example of you.

In that case, ask yourself whether six people randomly selected from the voting roles would agree that a criminal conviction matters in the context of the specific job you are offering. If you think they would, you can consider not hiring the person. I would probably check with a capable employment lawyer to discuss it. And don't ignore separate reasons why. A candidate who has a felony conviction may not be suited to you for different reasons. You do not need to hire an unsuitable prospect because he has a conviction. And you do not have to justify not hiring a prospect based on a conviction if it is really other things.

Call Today (301) 657-8184

 Google+  View Edward Sharkey's profile on LinkedIn