Well Kevin from what I have gone and dug up today it does not appear to be contract driven.Abit long of a read and is only part of it:
The new guidance is a blending of the old standards, and some new "suggested" best practices. In addition to considering the nature of the offense, its relationship to the potential job, and how much time that has passed since the conviction, the new guidance also recommend that employers review each case individually, creating a new requirement for an "individualized assessment." Employers are being asked to allow every applicant a chance to show why they should be hired despite a conviction. If you had any doubts, the Dollar General case makes it clear that the EEOC intends to enforce a new requirement for individualized assessment, even though Title VII has no such requirement. Conflicts with state and Federal laws are also looming, especially for health care providers, banks, and schools. For more details on the guidance, you can read my original blog post on the topic.
My problem with the guidance is that it puts employers in an untenable position: On one hand, they can be sued by the EEOC under a confusing set of guidelines for conducting criminal background checks. On the other hand, they risk negligent hiring suits from the victims of a violent employee, or fraud, theft and embezzlement.
The EEOC counters that it is not preventing employers from conducting criminal background checks, but it believes that criminal history information is being used to unfairly discriminate. Ex-offenders are not a protected class, but because of ties between arrest and race, the EEOC thinks that criminal background checks discriminate. And most people deserve a second chance. In the current economic climate where jobs are still scarce and there is abundant competition between job applicants, there are plenty of rejected candidates who are ready to test the EEOC's theory. In the end, the result is more class action lawsuits with multimillion dollar demands.
BMW
In the BMW case, the company re-screened existing employees who were reassigned to work in a different plant based on a change in contractors. Of the 645 workers who were re-screened, 55% were black and 45% were non-black. The complaint alleges that after screening the workers, BMW denied plant access to a total of 88 employees-around 14% of all employees screened. Of those 88 employees, 70 (80%) were black and 18 (20%) were non-black.
According to the complaint, BMW's policy:
"has been in effect since the opening of the BMW facility in 1994" and "excludes individuals with convictions of the following categories of crime: "Murder, Assault & Battery, Rape, Child Abuse, Spousal Abuse (Domestic Violence), Manufacturing of Drugs, Distribution of Drugs, [and] Weapons Violations." As further reflected in the written policy documents, "any convictions of a violent nature are conditions for employment rejection," and "there is no statute of limitations for any of the crimes."
The complaint says "BMW also excludes from employment individuals with criminal convictions, involving "theft, dishonesty, and moral turpitude" and "makes no distinction between felony and misdemeanor convictions."
Is this discrimination? Many employers are wondering why BMW is being sued for trying to maintain safe and sensible hiring standards. But the EEOC claims that the disparity in the rates at which black and non-black employees who lost their employment on account of BMW's criminal history background check policy is statistically significant. BMW, which employs over 9,000 workers in the US, has issued a statement that "BMW believes that it has complied with the letter and spirit of the law and will defend itself against the EEOC's allegations of race discrimination."
Dollar General
In the Dollar General complaint, the commission focuses on a hiring matrix designed Defendant with its background screening provider that identifies specific felonies and misdemeanors that will disqualify a candidate. The EEOC claims that Dollar General's matrix violates the guidance because it is not job-related and consistent with business necessity.
Specifically, the complaint states:
Moreover, the policy as applied does not provide for an individualized assessment for those applicants who receive a "Fail" result to determine if the reason for the disqualification is job-related and consistent with business necessity. For example, Defendant's policy does not allow for consideration of the age of the offender; any actual nexus between the crime and the specific job duties, employee safety, or other matters necessary to the operation of defendant's business; or to the time or events that have transpired since the offense. If the applicant was convicted of any of the identified offenses in the specified time frames, the employment offer is not made or the conditional offer of employment is rescinded."
Like BMW, the EEOC looks closely at what types of crimes disqualify candidates:
Some of the felony convictions on Defendant's matrix which mandate disqualification include: flagrant non-support (disqualified for 10 years); possession of drug paraphernalia (disqualified for 10 years); illegal dumping (disqualified for 3 years). Some of the misdemeanor convictions mandating disqualification include: improper supervision of a child (disqualified for 3 years); reckless driving (allowed 1 charge in 5-year period); failure to file income tax return (allowed 1 charge in 5-year period).
The commission says that out of 344,300 applicants, Dollar General revoked conditional employment offers for 10% of its black applicants, but only 7% of its non-black applicants, between January 2004 and April 2007, creating an improper "gross disparity" based on race. The company has more than 90,000 employees.
EEOC Targets Dollar General & BMW for Criminal Background Checks | EmployeeScreenIQ Blog
