In a recent blog we asked, “What should you do if an otherwise promising job candidate indicates he or she has a criminal record?” For us this was a hypothetical exercise. But thanks to a BMW plant in South Carolina it may become an important chapter in upcoming law books.
We told you in that blog that the Equal Employment Opportunity Commission (EEOC) is paying more attention to how employers screen job candidates with criminal backgrounds. Last year it issued a Strategic Enforcement Plan for Fiscal Years 2013-2016, and among its priorities was eliminating barriers in recruitment and hiring, protecting vulnerable workers and preventing harassment through systematic enforcement.
BMW gets the dubious honor of being among the first employers to be zapped under this new enforcement plan. And the field of logistics gets to share the spotlight for providing the context in this case. Pay attention, you 3PLs and 3PL clients out there.
In this case, BMW was the client and UTi the 3PL. Both had policies that screened employees for criminal backgrounds. In BMW’s case, its policy denied facility access to BMW employees and employees of contractors with certain criminal convictions. UTi's criminal background check limited review of convictions to within the prior seven years. BMW's policy had no such time limit. According to the EEOC, BMW used a blanket exclusion without considering the nature or gravity of the crimes, the ages of the convictions, or the nature of the employees’ positions.
This policy became practice in 2008 when UTi ended its contract with BMW and during a transitional period, UTi employees were told to re-apply with the new 3PL if they wanted to keep their jobs in the BMW warehouse. BMW told its new contractor to perform a fresh round of criminal background checks. Several employees with criminal convictions dating further back than UTi’s seven-year limit were snagged in the finer mesh of BMW’s net. As a result they were denied rehire as employees of the new contractor—despite the fact many of them had been working for BMW for years.
So the EEOC's Charlotte district office filed suit in U.S. District Court of South Carolina, Spartanburg Division against BMW under Title VII of the Civil Rights Act of 1964. The suit states that BMW “disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity.”
The Commission is suing for back pay, as well as injunctive relief to prevent future discrimination of employees and applicants. But the ramifications go beyond this. What may soon be called into question is the legality of background checks in general.
I contacted an attorney specializing in employment background checks who said all employers should keep an eye on this case, particularly BMW’s “no time limit” exclusionary policy. This attorney didn't want to be named, owing to some sensitivities involving the case.
“This is important because the Fair Credit Reporting Act (FCRA) allows for records of criminal conviction to be reported by a background screening company regardless of the time frame,” the attorney said. “But the EEOC has previously considered whether to limit such information to seven years. That’s the case against the BMW manufacturing facility. Even more worrisome is a case against the Dollar General stores because the question arises around whether the EEOC is effectively saying that all background checks are bad, a belief which some would argue some at the EEOC hold.”
BMW may have done employers in the field of logistics a favor by setting an example NOT to follow. We all know how hard it is to attract people to work in a warehouse. Those who were screened out of BMW’s talent pool had already proven themselves as reliable workers who turned their lives around. If the suits at BMW had taken the trouble to look behind the contract and see what those people were doing for them, they might have built a new appreciation for logistics and a new respect for fellow humans.
