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EEOC enforcement guideline changes may put carrier's hiring process in jeopardy

By Jim Klepper
The Trucker Staff

6/24/2013

This column was first published in the June 15-30 issue of The Trucker newspaper on stands now.

Editor’s note: This is the second of a two-part interview with Kelly Anderson, presidentand CEO of Impact Training Solutions, about why drivers are turned down for jobs and the challenges driver recruiting offices face with an over-regulated industry.

Anderson: “The Equal Employment Opportunity Commission laws have not changed, but the enforcement guidelines have, and most carriers don’t realize their current policies may put them in jeopardy. For instance, a carrier in New York had in their advertisement that they don’t hire felons.

A potential driver calls and says — ‘I’ve got a felony will you hire me?’ The recruiter says, ‘No, we have a company policy that we don’t hire anyone with a felony.’ The next call they got was from the EEOC.

Here’s the situation: About one in three African American men, about one in six Hispanics, and one in 17 white men have been incarcerated. So the EEOC has looked at this statistic and decided if you have a blanket policy that you won’t hire anyone with a felony conviction that you will have a ‘disparate impact’ on black and Hispanic men. Moreover, they don’t think a criminal conviction should keep a person unemployed for the rest of their life.

There are also some cities that have passed laws prohibiting the question on the application that asks, ‘Have you ever been convicted of a felony?’

There are two ways for a carrier to address this:

• Be able to prove that you are only banning criminal conduct that is directly related to the job requirements, and

• Do one-on-one interactions with the potential employee and consider that individual’s specific information about the nature of the crime, the time elapsed and the nature of the job.

If you do have the question on your application asking if a person has had a felony, it is recommended that you have a statement that ‘answering yes is not necessarily grounds for denial; all criminal records are considered on a case-by-case basis.’ So we’ve entered the day when a company can’t have a blanket policy regarding not hiring a person with a criminal record.

Since you have to hire a person with a criminal record wouldn’t it be nice to take the subjectivity out of the hiring decision and be at least fairly certain you are hiring a good person that will do the right thing? A person that will be safe, compliant, listen to and follow instructions? With this in mind I highly recommend JoBehaviors. JoBehaviors is a behavioral assessment tool that takes the subjectivity out of the hiring decision. It tests a person on their behavior — and their score gives you an indication of whether they have the right behavior for your company. So if you have to hire people with criminal records

I recommend knowing if they have the right behavior to be on your fleet. As long as you test every applicant you’re considering, this is completely legal and EEOC-compliant.

If you only test applicants with criminal records you’ll be guilty of ‘disparate treatment’ and then EEOC will call again.

The next area is the Fair Credit Reporting Act. Again, the laws haven’t changed, but in this case enforcement has been stepped up.

Recruiting departments order MVRs, employment records, criminal records and PSP reports. All of these are considered to be consumer reports and are regulated by the FCRA. Most recruiters know we have to have a signed release to order the PSP and any other consumer report when we have met the applicant in person.

However, the FCRA section 604 paragraph B has a provision for trucking companies to order the MVR (from most states), criminal record and employment record with verbal permission as long as we have notified the applicant of their consumer rights and our only interaction has been over the phone or some other electronic means.

However, where I see a lot of companies failing is in the adverse action letters and this is where we are seeing increased enforcement.

When you make a decision in whole or in part based on information contained in a consumer report on an applicant you’ve never met face-to-face, you must send an adverse action letter.

If you have met them face-to-face you have to send a pre-adverse action letter and then an adverse action letter. The pre-adverse action letter gives the applicant a chance to explain the situation and get it corrected if the report is flawed. Failing to send these letters can cost up to $1,000 per occurrence.”

Kelly Anderson has given us his overall view of the problems carriers have recruiting qualified drivers, but all these issues fall back on the driver. If you have a bad driving record you significantly reduce your chances of employment.

If you have further questions for Kelly, you can reach him at (888) 429-3445, or his e-mail is kelly@impacttrans.com.

Jim C. Klepper is president of Interstate Trucker Ltd., a law firm dedicated to legal defense of the nation’s commercial drivers. He is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at discounted rates. He is a lawyer that has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his CDL.

Get in touch with Klepper at (800) 333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Pick up a printed copy of The Trucker at TA/Petro truck stops or call 800-666-2770 ext. 5029 for information about an at-home subscription.

The Trucker staff can be reached to comment on this article at aprilleh@thetrucker.com.

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