Michael Tabman

Fired for a 40 year old Conviction

In Uncategorized on May 8, 2012 at 12:32 pm

Pre-employment Screening: Federal Government Double-talk
Proceed with Caution….

Recently, news reports revealed that an employee, Yolanda Quesada was fired from her job at Wells Fargo for shoplifting convictions that occurred approximately 40 years ago, when she was a teenager. All indications were that Ms. Quesada was an excellent employee. Is that legal? Is that fair?

In April, 2012, the Equal Employment Opportunity Commission (EEOC) released new guidelines on the use of criminal convictions when making employment decisions.

The EEOC Guidelines stress that an employer’s reliance on criminal records, while neutral in process, may violate Title VII of the Civil Rights Act of 1964, as amended, if the process has a disparate impact. Disparate impact may result solely from the process, while intent is not present.

The Guidelines point out that certain ethnic groups are arrested in numbers disproportionate to their representation in the general population. The Guidelines state, “…criminal record exclusions have a disparate impact based on race and national origin.” To defend itself from a disparate impact claim, employers must show that they followed the “Green Factors” which include the time that has passed and the gravity of the offense.

When asked about Ms. Quesada, a spokesman from Wells Fargo was quoted, “We are bound by federal law that generally prohibits us from hiring or continuing the employment of any person who we know has a criminal record involving dishonesty or breach of trust.”  Based on the above EEOC guidelines, you may suspect that Wells Fargo erred, not considering the “Green Factors” noted above. But Wells Fargo was correct. FDIC regulations generally prohibit a bank from employing a person convicted of any criminal offense involving dishonesty or breach of trust.

Surprisingly, Ms. Quesada’s offenses do not fall within FDIC’s exclusion of de minimis offenses which would not prohibit her continued employment. Per the FDIC regulations, one of the factors in determining if an offense is de minimis: conviction was at least five years prior.

Do you see some inconsistency in these regulations and guidelines? The federal government certainly appears to be setting some double standards. Trying to comply with federal rules is not easy and is becoming increasingly difficult.

Pre-employment screening is serious business. Do not rely on cut-rate, instant searches. They are not reliable, have not been vetted and can be trouble. Please contact us at SPIRIT Asset Protection, LLC at 913-499-0260 if you want to discuss professional pre-employment screening.

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