Equal Employment Opportunity Commission Holds Meeting on Use of Criminal Records for Employment Screening Background Checks

The Equal Employment Opportunity Commission (EEOC) – the agency of the United States Government that enforces federal laws prohibiting employment discrimination – held a meeting Tuesday, July 26, 2011 focusing on the use of criminal records by employers for employment screening background checks, according to the EEOC press release ‘Striking the Balance Between Workplace Fairness and Workplace Safety.’ At the meeting, the Commission was told by experts that employers refusing to hire people with arrest and conviction records even years after they have completed their sentences may cause recidivism and higher social services costs, but also that businesses face confusing and conflicting laws when using sometimes unreliable arrest and conviction records in making employment decisions.

The meeting – part of a series convened by the EEOC to examine the implications of various hiring practices – was designed to identify and highlight ways in which arrest and conviction records have been used appropriately and current legal standards. The EEOC has already issued written policy guidance regarding the use of arrest and conviction records in employment and the meeting was an opportunity to “learn about the practical ways employers have been able to balance business concerns with the need to ensure that employment practices are fair and non-discriminatory,” according to EEOC Chair Jacqueline A. Berrien. 

Some in the meeting commented that removing arbitrary bars to hiring people with arrest and conviction records improves job availability and lowers crime and social costs, and also urged employers to develop and implement a “responsible business plan” and overcome “fears, biases and hiring challenges” in order to facilitate hiring people with arrest and conviction records. Also, contrary to what some believe, having an arrest or conviction record does not automatically mean that a person is unable to work for the federal government.

Others in the meeting detailed to the EEOC the confusing and often contradictory pressures on businesses when using arrest and conviction records in making employment decisions – including conflicting laws – and urged the Commission to consider these constraints on businesses, especially small businesses, in developing guidance or in deciding whether to pursue litigation in certain cases. Noting the unreliability of criminal record databases, the EEOC was warned about the proliferation of online companies offering “instant” background checks that generate reports that often contain inaccurate or incomplete information and rarely any details about criminal record information. 

Attorney Lester Rosen, CEO of Employment Screening Resources (ESR), a background check company accredited by The National Association of Professional Background Screeners (NAPBS), commented on the EEOC press release for the meeting. “It is a valid point that the proliferation of cheap and instant online databases can have a higher degree of inaccurate results. However, the speakers did not distinguish between professional background screeners and cheap online data websites,” says Rosen, author of ‘The Safe Hiring Manual,’ the first comprehensive guide to employment screening. “A real background screening firm is obligated under the Fair Credit Reporting Act to take a number of measures to ensure accuracy. The one quick fix that would help employers and job applicants is to make the rule in California where a criminal record cannot be reported unless it has been confirmed to be accurate and up to date, which normally requires reconfirmation the courthouse, a nationwide rule.”

In addition, Rosen said some of the meeting’s testimony seemed to lack real world experiences where employers that are trying to keep their business running and provide jobs in a recession can ill afford to hire unsafe, unfit, dangerous or dishonest people. “I am not sure that even the EEOC has hired a person with a criminal record,” says Rosen. “When you are not actually running a business, or meeting payroll, it is easy to become a Monday morning quarterback and try to shift the solution to social ills on employers already stressed by a recession.”

The EEOC will hold open the July 26, 2011 Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meetings.  Public comments may be:

The EEOC guidance regarding the use of arrest and conviction records in employment is available at: http://www.eeoc.gov/policy/docs/convict1.html. The press release about the EEOC meeting on July 26 regarding criminal records is available at: http://www.eeoc.gov/eeoc/newsroom/release/7-26-11.cfm. more information about the meeting is available at http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm.

For more information on background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

About Employment Screening Resources (ESR): Founded in 1997 in the San Francisco area with a mission to help employers and employees maintain safe workplaces, Employment Screening Resources (ESR) is accredited by The National Association of Professional Background Screeners (NAPBS®) and provides industry leading technology, legal compliance, service, turnaround, and accuracy. ESR also wrote the book on background checks with ‘The Safe Hiring Manual’ by founder and President Lester Rosen. For more information, visit http://www.ESRcheck.com.