Compliance Issues Rise Due to Criminal Screening Policies

When employers utilize criminal record screening, they must continue being vigilant regarding complying to relevant laws. Target, a leading retailer in the U.S., reinforces this fact in a recent settlement. Following a threated nationwide class action lawsuit, the company settled for 3.74 million dollars and further relief that arose under Title VII of the Civil Rights Act of 1964.

According to the plaintiffs’ complaint, the policies Target uses for criminal record screening had an unequal influence on Latino and African-American applicants seeking jobs for positions in stores. Standards for making assessments regarding an ex-offending job applicant and as eligible or ineligible for jobs was the focus of the claim. As a result, the court ruled against Target, and they have since not made admissions to liability.

The parties have negotiated a class-wide pre-litigation settlement over several years that must receive approval by the federal court under the Federal Rules of Civil Procedure. Plaintiffs’ attorneys submitted the proposed settlement on April 2, 2018, for approval to a federal court in New York. In addition to a monetary payment, this settlement also requires programmatic relief. Explicitly, an agreement was made by the retailer to put two experts on retainer in the field of organizational and industrial psychology to implement, design, and develop appropriately authorized judgment procedures for the hiring of employment applicants who have criminal histories for non-exempt, hourly positions at Target stores.

Ultimately, the topic of background check, as well as policies regarding criminal record screening policies, is prickly and is continuing to reap attention from legislatures, the plaintiffs’ bar and the Equal Employment Opportunity Commission (EEOC).

It’s wise for every employer, especially those who are multi-state, to take additional actions to ensure compliance with all relevant laws, including the Fair Credit Reporting Act (FCRA) and the alleged “ban-the-box” laws. In particular, the FCRA has developed into one of the pillars of the plaintiffs’ class action suit.