Chamber of Commerce Urges OMB to Require EEOC to Allow Public Input on Background Check Guidance

In a recent letter to the Office of Management and Budget (OMB), the U.S. Chamber of Commerce urged the OMB to require the Equal Employment Opportunity Commission (EEOC), the nation’s leading enforcer of employment anti-discrimination laws, to allow a review by the OMB and public input as the EEOC prepares to issue new enforcement guidance on the use of criminal background checks and credit background checks by employers. The text of the letter from the Chamber regarding ‘Forthcoming Significant Guidance from EEOC on Employer Use of Credit and Criminal History’ is available at: http://op.bna.com/dlrcases.nsf/id/kmgn-8szk2j/$File/ChamberCrim.pdf.

In the letter dated April 2, 2012, the Chamber – the world’s largest business federation representing the interests of more than three million businesses – urged the OMB to ensure that the EEOC does not finalize the guidance on criminal and credit background checks by employers until after it has undergone a proper review by the OMB and been made available for public notice and comment. The Chamber sought to bring to the attention of the OMB serious issues related to the forthcoming guidance on criminal background checks and credit background checks being developed by the EEOC:

For some time, the EEOC has been considering issuing two guidance documents, both of which relate to the interaction of disparate impact under Title VII of the Civil Rights Act of 1964 and employer use of information obtained during applicant and employee background checks. The first guidance document is related to credit history information, while the second concerns criminal history information. By all accounts the EEOC is now preparing to approve these significant guidance documents without making them available for public comments and without seeking review by the Office of Management and Budget (OMB).

The Chamber believes the EEOC’s potential guidance on criminal and credit checks by employers warrants review by the OMB. Although the EEOC held a public meeting on the use of criminal background checks in July 2011 and a public meeting on credit background checks in October 2010, the letter states the EEOC “has not shared its draft guidance for the opportunity to provide comment” and that “members of the public can only guess as to the direction that the guidance will take” which is “contrary to the strong public policy favoring pre-adoption notice and comment on guidance documents.”

The letter also states that “Chamber members have significant concerns that the guidance under consideration by the EEOC will not interpret Title VII in a fair and balanced manner” and new guidance on the use of criminal background checks and credit background checks for employment would “significantly” alter employer practices:

Employers are concerned that the anticipated guidance will remove or significantly limit the use of two important tools that employers use in hiring and related decisions. The impact could be significant both in terms of costs but also in terms of increased exposure and risk to coworkers, customers and clients, and the public. We believe it is extremely likely that either guidance, standing alone, would easily meet the threshold to be considered economically significant. In addition, these guidance documents could well conflict with the myriad state and federal laws that recommend or require that employers perform comprehensive background checks, including on credit or criminal conviction history. Obviously, such an outcome raises serious concerns for employers.

As reported previously in the ESR News blog ‘New EEOC Strategic Plan Combats Employment Discrimination through Strategic Law Enforcement,’ the EEOC recently approved its ‘Strategic Plan for Fiscal Years 2012-2016’ that establishes a framework for achieving the EEOC’s mission to stop and remedy unlawful employment discrimination. The first of three strategic objectives in the plan is to combat employment discrimination through strategic law enforcement. The new EEOC Strategic Plan is at: http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16.cfm.

“Employers need to be aware that the EEOC apparently plans on focusing on using administrative and litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination,” says Attorney Lester Rosen, CEO of background check company Employment Screening Resources (ESR) and author of ‘The Safe Hiring Manual,’ the first comprehensive guide to background checks.

Rosen said an example of this new EEOC strategy was the $3.13 million settlement paid by Pepsi Beverages in January 2012 following an investigation by the EEOC that found the criminal background check policy formerly used by Pepsi discriminated against more than 300 African Americans in violation of Title VII of the Civil Rights Act of 1964. Pepsi agreed to pay the settlement and make major policy changes by providing job offers and training to resolve the charge of nationwide hiring discrimination.

For more information about background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening firm accredited by The National Association of Professional Background Screeners (NAPBS®) – at http://www.esrcheck.com/ or call 415.898.0044 or 888.999.4474.

Sources:
http://op.bna.com/dlrcases.nsf/id/kmgn-8szk2j/$File/ChamberCrim.pdf
http://www.bna.com/chamber-urges-omb-n12884908852/

About Employment Screening Resources (ESR):
Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM – provides accurate and actionable information, empowering employers to make informed safe hiring decisions for the benefit for our clients, their employees, and the public. ESR literally wrote the book on background screening with “The Safe Hiring Manual” by Founder and CEO Lester Rosen. ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percentage of screening firms. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about Employment Screening Resources (ESR), visit http://www.esrcheck.com/ or call 415.898.0044 or 888.999.4474.

About ESR News:
The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com.