Attorney Jersey M. Green Discusses Employee Background Checks

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Attorney Jersey M. Green, of Preeo Silverman Green & Egle, P.C., in light of an Uber driver who allegedly shot and killed six people and wounded two others and the shootings at the Excel Industries in Kansas, discusses the public’s interest in the use of employment background checks.

Jersey M. Green, Preeo Silverman Green & Egle, P.C.

Preparing criminal background policies for employers, which are effective yet compliant with the law, is a matter for which an employer should obtain the assistance of an attorney experienced in such matters.

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According to a February 22, 2016, USA Today article, after an Uber driver allegedly shot and killed six people and wounded two others in Kalamazoo, MI, attention turned to the ride-sharing company’s driver-screening process. The article further reports that Uber said the driver had passed a background check.

“Criminal background checks as a pre-employment screening tool can be an effective means by which an employer can identify applicants who would pose an unacceptable risk to the employer’s interests if hired,” said Jersey M Green, an attorney at Preeo Silverman Green & Egle, P.C. “For example, it would be important to a childcare center to know whether an applicant has a conviction for a crime involving sexual exploitation of a child before hiring that person as daycare provider.”

However, adds Green, how an employer conducts the background check and what it does with the information it obtains must comply with the law. Currently, the No. 1 enforcement priority of the U.S. Equal Employment Opportunity Commission (EEOC) deals with unlawful “barriers to employment.” An employer’s background-check policy may be deemed to be an unlawful barrier to employment, for example, when it has the practical effect of being disproportionately adverse to a class of persons based on race or ethnicity.

“Fortunately, the EEOC and the courts have given guidance as to how employers can draft their background-check policies in a way that makes them compliant with the law while balancing the employer’s legitimate interests,” said Green. “To counterbalance the potential for a disparate impact, the employer’s background-check policy should provide for the exclusion of an applicant based on a criminal conviction only when the conviction bears a reasonable relationship to the job for which the applicant is being considered, exclusion based on the conviction is a matter of business necessity, and there is no lesser alternative.” The employer’s practices or policies must also allow for an individualized assessment, rather than an automatic exclusion from employment.

Furthermore, an employer’s background-check policy must also comply with the Fair Credit Reporting Act and any comparable state law provisions since the information obtained in many instances will meet the Act’s expansive definition of a credit report. “Preparing criminal background policies for employers, which are effective yet compliant with the law, is a matter for which an employer should obtain the assistance of an attorney experienced in such matters,” said Green, who has practiced law in Colorado for more than three decades.

About Jersey M. Green, Preeo Silverman Green & Egle, P.C.
Jersey M. Green is a general litigation attorney handling business disputes, including employment law matters, construction litigation, real estate, personal injury, professional malpractice and domestic relations cases. For more information, please call (303) 296-4440, or visit http://www.preeosilverman.com. Preeo Silverman Green & Egle, P.C. is located at 6465 Greenwood Plaza Blvd., Suite 1025, Centennial, CO 80111.

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