Pepsi Employment Background Checks Lead to $3.1 Million Lawsuit

employment background checksWould you agree that life is about balance?  It is an everyday struggle for most of us.  Eat too much or not enough.  Exercise too little or too much.  Spend too much time running kids from one activity to the next questioning our own sanity. And why should our career be any different?  Finding and maintaining balance in all areas of our life takes a lot of work.

I spent an hour this morning speaking with a journalist about the importance of balance in employment background checks.  I explained that a recent judgment against Pepsi Beverage Co. in Minnesota clearly illustrates the importance of balance in background screening.

Pepsi will pay $3.1 million to settle an EEOC investigation.  Why?  The EEOC found that more than 300 African-American applicants had been adversely affected by Pepsi’s background screening policy.

Pepsi’s policy at the time, from 2006-2010, allegedly denied employment for arrests even if there was not a conviction if it was job related.  The EEOC has long held that the use of arrest records has a disparate impact on minorities because minorities are arrested at disproportionately higher rates.

Zero tolerance policies that once dominated employment screening are now being challenged.  The pendulum has swung the opposite direction.   And I am not an advocate of zero tolerance policies.

Unfortunately, the pendulum did not stop in the middle, balancing safety, security and consumer protection.  They can co-exist.  I take consumer protection as serious as I take criminal background checks.  We take great care and pride to make sure that an applicant is not adversely affected by inaccurate information.  We write articles and provide training so our clients understand how to balance the legal rights of applicants with the legal responsibilities of conducting due diligence to ensure a safe work environment.

So we now occupy a world where the EEOC tells us that an arrest record should never be used.  Does that mean every person arrested did nothing wrong?

Hold your horses.  I get the whole innocent until proven guilty legal concept.  But does excluding a long history of arrest data on someone represent balance?

This is not a theoretical discussion for me.  I have had a front row seat on both sides. I have seen people arrested that should never have been arrested.

I also spent many years investigating violent crimes committed by family members and in 1994 developed the largest law enforcement-based domestic violence program in the U.S.

What was our first order of business?  We trained and equipped each of our investigators to build strong cases that they could successfully prosecute without a victim testifying.  Why?  The majority of domestic violence cases are dismissed because the victim is too reluctant…which is code for too scared…to prosecute.

That is why when I see a long history of domestic violence arrests it does not always scream innocent to me.    Yes, maybe innocent in a court of law.  But not innocent.  The criminal justice system has not provided a balanced approach to domestic violence victims.

However, where does that leave us as employers?  We have to have balance in our employment background checks.  And this is what I discussed with the journalist.  We have to operate under the FCRA, EEOC, ADA, state laws….the list goes on and at the same time provide a safe work environment.

How well balanced is your employment background checks policy?