DOL Office of Contract Compliance Programs Issues Directive on Use of Criminal Records for Background Checks

The Department of Labor’s (DOL) Office of Contract Compliance Programs (OFCCP) has issued a new Directive on ‘Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin.’ The OFCCP Directive advises federal contractors and subcontractors about potential discriminatory liability resulting from using criminal records for employment background checks and warns policies that exclude workers with criminal records without taking into account the age and nature of the offense could violate Title VII of the Civil Rights Act by adversely impacting minority candidates. The OFCCP Directive, which took effect immediately, is available at http://www.dol.gov/ofccp/regs/compliance/directives/dir306.htm.

According to the OFCCP, “the purpose of the Directive is to provide information to federal contractors and subcontractors and federally-assisted construction contractors and subcontractors (contractors) and to OFCCP personnel about:

  • The circumstances in which exclusions of applicants or employees based on their criminal records may violate existing nondiscrimination obligations;
  • The Training and Employment Guidance Letter (TEGL) 31-11 issued on May 25, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department of Labor’s Employment and Training Administration (ETA) and Civil Rights Center (CRC); and
  • The Enforcement Guidance issued by the Equal Employment Opportunity Commission (EEOC) on April 25, 2012.”

In April 2012, the EEOC – the agency enforcing federal laws prohibiting employment discrimination – approved an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The OFCCP Directive warns that contractors who use criminal background checks for employment decisions may risk violating Title VII even if their policies do not “intentionally” discriminate against applicants or employees on the basis of protected characteristics such as race or national origin since the mere consideration of criminal records may disparately impact racial and ethnic minorities who statistics show have higher incarceration rates. The new EEOC Guidance, which will impact how employers in America perform criminal background checks, is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

The OFCCP Directive also endorses consideration of the so-called “Green factors” first laid out in the case  Green v. Missouri Pacific Railroad Company, 523 F.2d 1158, 1160 (8th Cir. 1975) when considering whether a conviction should be a bar to employment. The three Green factors that are relevant to whether a criminal conduct exclusion is “job related and consistent with business necessity” are:

  • The nature or gravity of the offense or conduct;
  • The time elapsed since the offense, conviction; and/or completion of the sentence; and
  • The nature of the job sought or held.

The OFCCP Directive also describes the two circumstances in which the EEOC Guidance believes employers will consistently meet the “job related and consistent with business necessity” defense.

  • First is when the employer validates the criminal conduct exclusion for the position in question in accordance with the Uniform Guidelines on Employee Selection Procedures (UGESP).
  • Second, where validation in accordance with UGESP is not done, the EEOC discusses three factors that provide the starting point for analyzing how specific criminal conduct may be linked to particular positions.

The OFCCP Directive also addresses the ‘TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 31-11’   issued to public Job Banks and other “covered entities” about the relevance of exclusions based on criminal records to the existing nondiscrimination obligations of public workforce system entities and complying with nondiscrimination provisions that include new EEOC Guidance on criminal record restrictions and disparate impact based on race and national origin. TEGL 31-11 advises these covered entities to conduct their activities using safeguards to prevent discrimination and promote employment opportunities for formerly-incarcerated individuals and other individuals with criminal records. TEGL 31-11 is available at: http://wdr.doleta.gov/directives/corr_doc.cfm?docn=9230.

The OFCCP Directive is another sign of the growing trend of greater scrutiny by the government of criminal background checks used for employment purposes. To ensure compliance with these growing restrictions, employers should carefully review policies regarding the use of criminal background checks in hiring and employment decisions. This greater focus by the government, especially the EEOC Guidance, on how employers use criminal records was one of ‘ESR’s Top Ten Background Check Trends for 2013.’ The full list of trends is available at http://www.esrcheck.com/Top-Ten-Background-Check-Trends-for-2013.php. For more information about background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening firm accredited by the NAPBS – at http://www.esrcheck.com or call toll free 888.999.4474.

Source:

http://www.dol.gov/ofccp/regs/compliance/directives/dir306.htm

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