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EEOC, BMW & Background Screening Ramifications

By ClearStar | Nov 4, 2015 | Company News

In September, the U.S. Equal Employment Opportunity Commission (EEOC) announced that BMW Manufacturing Co., LLC (BMW) entered into a consent decree, requiring BMW to pay $1.6 million to settle EEOC allegations that the car manufacturer discriminated against African American logistics employees through application of criminal background checks which had a disparate impact and lead to said employees’ termination.

Under the consent decree, BMW is enjoined from use of the criminal background check guidelines which were in effect. Additionally, the consent decree lays out key requirements for BMW and its logistics provider, including:

  • They agree not to decline to hire any job applicant or otherwise disqualify any individual in a logistics position because of “criminal arrests or charges of any type if such arrests or charges did not result in a conviction.”
  • They can, however, postpone an offer of employment if there is a pending charge, pending resolution of the charge.
  • They must conduct an individualized assessment if they seek to disqualify any job applicant based on criminal history. Meaning they must provide written notice to the job applicant describing the criminal history which is at issue, and an offer to the applicant to explain the conviction and their appropriateness for employment.
  • Above notice must be delivered by “reasonable means” and must afford the job applicant a period of at least 21 days during which time they can contact BMW or the logistics provider before an adverse employment decision is finalized.
  • They must appoint an official to review all final decisions to decline to hire or otherwise disqualify an applicant due to criminal history.

http://www.immigrationcomplianceinsights.com/2015/09/08/bmw-signs-consent-decree-backgroundscreening/

U.S. Equal Employment Opportunity Commission v. BMW Manufacturing Co., LLC, Sept. 8, 2015 (7:13-cv-01583).

Analysis

Under Section 604(b)(3) of the federal FCRA, except for employment in the trucking industry, an employer intending to take adverse action shall, before taking such action, provide the consumer a copy of his or her consumer report and a summary of the consumer’s rights under the FCRA. The summary is to be in a form prescribed by the FTC under section 609(c)(3).

There is no specific period of time an employer must wait after providing a pre-adverse action notice and before taking final adverse action against the consumer under the FCRA. However, case law suggests a minimum of 5 business days.

Although not the law, this consent decree requires BMW to wait 21 days between the pre-adverse and final adverse action letter in order to afford the applicant the opportunity to dispute any information contained in the consumer report and/or provide mitigating circumstances to the employer in order for the employer to reconsider its decision not to hire the applicant based on information contained in a consumer report.

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