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Criminal Background Checks

BY Laura Klepacki

The use of criminal background checks by employers is being closely watched.

Concerns that convictions among African Americans and Hispanics were causing hiring discrimination, the Equal Employment Opportunity Council has issued new guidelines regarding employer use of criminal records under Title VII of the Civil Rights Act of 1964. According to the Pew Center on the States 2010 study, while one in every 87 white men in America have been incarcerated, among Hispanics it is 1-in-36 and blacks it is 1-in-12.

Some experts say that abiding by the updated guidelines can be tricky for retailers. Thomas L. McCally, a labor attorney at Carr Maloney in Washington, D.C, described the 57-page document as "clear as mud" in a presentation during the National Retail Federation Convention’s 102nd Convention & Expo in New York City.

McCally stressed that the new guidelines present suggestions, and not rules or regulations. But if the EEOC detects hiring activities that arguably violate Title VII of the Civil Rights Act of 1964 — which bars discrimination based on race, color, religion, sex or national origin — it intends to pursue legal action. In the EEOC’s Strategic Enforcement Plan for 2013-2016, it presents a litigation agenda regarding the misuse of criminal background checks.

"Retailers," McCally said, "are in direct target because of their large numbers of hires." The EEOC has indicated it is on the lookout for individual cases that could be broadened to class actions or systemic violations.

Under the new guidelines, arrest inquiries are generally not allowed.

"In most cases, employers cannot consider the arrest record of a job applicant," McCally said.

As the EEOC points out — being arrested does not make one guilty. However, there are exceptions that retailers could use as a defense, such as the underlying behavior that caused the arrest. It must be considered in the context of the events that occurred and how that behavior would impact qualifications for the specific job. An example, according to McCally, would be if the arrest was for sexual misconduct and the job was for a daycare center.

Conviction records must be weighed with caution.

"You cannot say, ‘If you have a criminal conviction we won’t hire you.’ There is no longer a blanket exception," McCally said.

In fact, in the guidelines, the EEOC recommends "that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity."

As a best practice, the EEOC says employers should conduct individualized assessments. Three things to be considered are: the nature and gravity of the offense or conduct, the time that has passed and conduct since the offense, and how it applies to the nature of job sought.

"This gives the individual an opportunity to explain and an opportunity to go deeper into the matter," McCally explained.

McCally advised retailers to stay tuned to their state and local ‘Ban the Box’ laws, which prohibit conviction questions on applications. Federal legislation has also been introduced in the Congress — H.R. 6220 — to eliminate questions about criminal history on applications.

To stay in accord with the laws, McCally emphasized, "The burden is on you, the employer."

Laura Klepacki is a contributing editor to Chain Store Age.

Under the new guidelines, arrest inquiries are generally not allowed.

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Focus on: Slip and Fall

BY Amanda Baltazar

Slip-and-fall accidents in public places, including retail stores, are the leading cause of premise liability injuries and rank among facilities managers’ top management issues. And with the elderly particularly vulnerable to falls, the size and scope of the problem is likely to grow in the near future given the aging of the baby boomers.

Statistics from major insurance firms detail the problem. Slip-and-fall injuries are the leading source of general liability claims incurred by CNA policyholders in the real estate sector. (CNA is one of the country’s largest commercial insurance writer and the 13th largest property and casualty company.)

Experts say that retailers can lower their risk of slip-and-fall incidents by selecting high-traction flooring when building new stores and remodeling existing facilities. Indeed, according to CNA, using materials with proven high-traction characteristics is one of the most cost-effective ways to avoid slip-and-fall issues related to hard floors. Since texture, to a great degree, determines a floor’s slip resistance, floors with abrasives in their surface can be very slip-resistant, even when wet. Soft surfaces, such as carpet, are also safe with regard to slip and fall.

According to Russell Kendzior, founder of the National Floor Safety Institute (NFSI), the most tractable flooring choice is polished concrete.

"Polished concrete offers one of the highest levels of traction and is very consistent," he said.

It’s worth noting that all floors can become less tractable if cleaned with the wrong products. Some products, for example, can deposit a slippery sheen. Retailers are advised to select floor treatment, cleaning and maintenance products with proven slip-resistance characteristics that are compatible with the particular flooring surface. (For a list of products certified by the NFSI, go to nfsi.org).

MATS: Many retailers rely on entranceway mats to prevent dirt, water and other materials from being tracked into the store and to help reduce the risk of slip and fall. It’s important that stores use the right type of matting and provide for proper inspections and maintenance, all of which are detailed in the recently published ANSI/NFSI B101.6 entrance mat standard.

"In the past, there were no standards for the use, selection, inspections and maintenance of entrance mats, but today there is and retailers need to be aware of them," Kendzior said.

With regard to the thickness of mats, the rule (ADA, ASTM and the like) is that the mats be less than 1/4-in. in height and have a beveled edge to which most entranceway mats on the market comply, he added.

In order to avoid trip hazards, mats should be firmly secured to prevent migration. They should also be frequently inspected to ensure they have not buckled or curled.

Kendzior also recommends the use of entranceway walk-off tile, which is installed flush with the surface of the floor. This option is a little more expensive, he acknowledged, but it adds up to small change compared with the average slip-and-fall claim of just over $5,000 (and that’s for someone who doesn’t require medical attention). And, he added, the costs are usually paid off in a year or two, since there are no more rental costs, and claims for slips and falls are reduced or eliminated.

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Mobile Payments

BY CSA STAFF

Consumer use of smartphones and tablets is helping to drive the growth of mobile transactions in retail. Chain Store Age spoke about the growing trend with Don Kingsborough, VP retail services, PayPal, which recorded $14 billion in mobile payments in 2012 and expects to exceed $20 billion this year. According to Kingsborough, PayPal is well-positioned to tap into mobile payment growth as it already has three key elements in place: a large consumer base (55 million-plus in the United States), a network of merchant partners and "ecosystem" partners.

Apart from the elements you referred to above, what else is key to getting shoppers to use a mobile payment option?

Additionally, you need to offer value. Tapping and paying today is no different than swiping a card, but creating value is key.

How does PayPal create value?

By offering shoppers coupons or rewards and by creating unique experiences that add convenience or allow them to save time. For example, we are working with Jamba Juice to enable people to order ahead via the PayPal app. After people order, they can go to Jamba Juice and simply pick up their order and walk out. They already paid so they don’t need to wait in a line.

What about retailers — are they on board with digital wallets?

I’ve met with more than 200 large retailers around the world, and every one of them is working on mobile payments because the people who shop at their stores have a desire to use digital wallets that work in-store, online and on a mobile device.

So yes, retailers are on board!

About how many retailers are using PayPal’s payment solution?

At the close of 2012, we had agreements with 23 retailers to enable their customers to pay with PayPal in-store, which translates to PayPal being available in more than 18,000 locations in the U.S. And this spring, PayPal will be accepted in millions of more locations through our collaboration with Discover.

What is PayPal’s approach to mobile wallets?

PayPal is a ‘virtual wallet’ — accessible from any number of form factors (card, hands-free, mobile bar code, mobile check-in, etc.), and that works wherever the customer is and however the customer wants to pay. PayPal offers users a choice of how they want to pay in a simple, fast and secure way.

Does PayPal’s experience in online payments give it an advantage here?

We have 55 million customers in the U.S. and 123 million active customers worldwide, and that alone gives us a great advantage. These people want to use PayPal, and we are giving more options to do so both online and in-store. Additionally, a big part of the industry lead that PayPal currently has is the added layer of security that has always been provided. Our approach overcomes a key barrier to other digital wallet models, which require consumers to put payment credentials in their phone, thus opening up security concerns.

Do retailers have to buy new hardware to accept the PayPal solution?

PayPal works seamlessly with a retailer’s existing point-of-sale hardware because it is an open platform that is both device- and platform-agnostic. This simple integration allows for a checkout at the register that is simple, fast and secure.

How will PayPal’s new partnership with NCR help expand its digital wallet footprint?

We are working with NCR to leverage their strong footprint with retailers and the hospitality industry and encourage mobile and digital payment adoption.

In the first phase, NCR will integrate PayPal mobile payment options into the recently announced NCR Mobile Pay application and NCR Aloha Online Ordering. With this integration, PayPal will be a payment option and allow consumers greater choice for simple, fast and secure purchases, alongside credit or debit cards. Consumers will also be able to use the PayPal mobile application to locate, order ahead and "check in" at participating NCR Mobile Pay merchants to access the same functionality.

For an extended version of this article, visit chainstoreage.com.

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