The New York Times interviewed our CEO, Joe regarding the Equal Employment Opportunity Commissions (EEOC) policy revisions on hiring. Joe was able to articulate the effects new policies could have on his own hiring procedure and interjects a bit of his philosophy on second chances. It's an interesting read.
Making Sense of New E.E.O.C. Rules on HiringBy ROBB MANDELBAUM
How small-business issues are shaping politics and policy.
Second chances come up often when you talk to business owners on the record about hiring people who have served time — the subject, indirectly, of a just-published Times story about the new rules from the Equal Employment Opportunity Commission that may limit using criminal records in hiring decisions. Joseph Dutra, who employs 23 people at Kimmie Candy Company in Reno, Nev., is willing to give somebody with a criminal history a second chance, provided the crime didn’t include violence or a sexual advance on a child. “We don’t have a blanket policy here, but we need to have people with good morals, who are compatible with the public that we bring in,” said Mr. Dutra, who added that groups of schoolchildren often tour the factory. “We’re trying to make this a fun little place where people can come and feel safe.”
The new E.E.O.C. policy warns companies that they may be violating discrimination laws if they do not tailor a ban on hiring people with criminal records narrowly to the open job, and it’s not clear that Mr. Dutra’s concern for visiting children would pass the agency’s nexus test. It’s possible, for example, that some jobs at the company do not involve any, or enough, contact with children to justify what is in fact a blanket ban of a sort. But Mr. Dutra is not moved by such distinctions.
“When you have a small company like ours,” he said, “the management has to hire people that they’re going to work with on a daily basis, and everybody here wants to have a feeling of safety. It’s just a worry that I would prefer not to have.” Nor is he interested in hiring serial offenders, even if the crime is unrelated to the job. “If somebody has done it once, people make mistakes in life, I understand that, but if you find a person who’s been convicted three or four times for the same thing, would I hire him here? No, because they would not have proven that they are rehabilitated. The government has good intentions, probably, to try and get criminals or ex-criminals into the work force. But in this kind of economy, where we’re trying to figure out how to be successful and grow, small businesses should not have the burden of having somebody sue you because he has a criminal record and didn’t fit in our company.”
Privately, of course, some business owners have a less charitable view of the government’s intentions, and of the way the E.E.O.C. operates, which they complain is an opportunity for angry ex-employees to exact revenge, though at a glacial pace. Still, most charges brought to the E.E.O.C. by employees are resolved in favor of the employer — which could reflect either the spuriousness of the charges or the difficulty in proving them, or perhaps both. Between 2008 and 2011, the commission received between 90,000 and 100,000 complaints of discrimination each year from aggrieved employees. In 2011, the agency resolved 112,499 complaints, including cases opened in previous years and cases transferred from other agencies. In two-thirds of those cases, the E.E.O.C. found no evidence of discrimination. (In the legal language, these are called findings of “no reasonable cause.”) Another 16 percent of cases were closed for administrative reasons, oftentimes after charging employees failed to respond to the commission or simply disappeared.
In all, only about 18 percent were resolved in favor of the employee, and resulted in payments totaling $365 million. But only in a little more than a fifth of these cases (or four percent of all resolutions) did the Commission find “reasonable cause.”* Rather, most of these so-called “merit resolutions” involve settlements, or instances where employees drop the case in exchange for benefits. But the lawyers interviewed in the story said that these outcomes shouldn’t necessarily reflect vindication for the employee. “The E.E.O.C. investigators regularly try to settle cases before they are fully investigated, as a means of clearing backlog off the books,” said Laurence E. Stuart, a labor lawyer based in Houston who represents companies before the E.E.O.C. “Likewise, withdrawals with benefits are not always based on merit. It is almost always cheaper to settle a marginal case than it is for the company to stand its ground and litigate the matter.” Mr. Stuart said that in his experience, legal fees for E.E.O.C. complaints typically cost a company between $2,500 and $15,000.
Mr. Dutra, for his part, insisted that E.E.O.C.’s new guidelines would not change his hiring practices. “I still would have those standards for my company,” he said. “Now, would I advertise that I did that? No. But I think most small businesses, if they have a preference on hiring somebody, no matter what the government says, they’re going to figure how to hire the people they want to hire.”
*Interestingly, in two out of three cases where the E.E.O.C. found evidence of discrimination in 2011, the agency’s effort to bring employer and employee together (“conciliation”) failed, and brought no remedy at all to the aggrieved employee. The E.E.O.C. can then sue these recalcitrant companies, but is reluctant to do so — it typically takes only about 10 percent of these companies to court.