Updated EEOC Guidance on Use of Criminal Records by Employers Becoming Core Concern for Human Resources

The updated Guidance on the use of criminal records in hiring decisions issued by the U.S. Equal Employment Opportunity Commission (EEOC) on April 25, 2012 carries the potential to impact the hiring processes of every employer and Human Resources professional in the United States in 2014 and beyond. Although not a law or legally enforceable regulation, it is critical for employers to understand the Guidance since it shows how the EEOC interprets the use of criminal records. This is Trend Number Two of the 7th Annual Employment Screening Resources® (ESR) ‘Top Ten Background Check Trends’ for 2014. For more information about the trends, please visit http://www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.

The EEOC – the agency that enforces federal laws prohibiting employment discrimination – continues to actively investigate and bring lawsuits on the basis that the use of criminal records without consideration of whether the record is job related and its use constitutes a business necessity can create a discriminatory “disparate impact” on groups protected under Title VII of the Civil Rights Act. The Guidance expands on existing EEOC positions and recommends that private employers follow “Ban the Box” rules that remove questions about criminal histories of job applicants from initial applications.

When a question is finally asked about a criminal record at or after an interview, the EEOC recommends that employers narrow the inquiry to avoid matters that are old or irrelevant to the position. The Guidance reiterated the rule that the mere fact of an arrest is not relevant since it does not prove underlying conduct. Many states already have rules preventing employers from inquiring or considering an arrest where there was no conviction or no pending court matter.

The EEOC also recommends a new tool called an “Individualized Assessment” where an applicant rejected for criminal records receives one last opportunity to either question the accuracy of the record or provide a reason why they should still be a candidate for the job.  That notice can be provided in conjunction with the adverse action notifications required under the federal Fair Credit Reporting Act (FCRA).  The EEOC’s ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964’ is available online at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

To help employers comply with the new EEOC Guidance on criminal records, three national civil and workers’ rights organizations have developed a report titled ‘Best Practice Standards: The Proper Use of Criminal Records in Hiring.’ This best practices report was prepared by the Lawyers’ Committee for Civil Rights Under Law, the National H.I.R.E. Network, and the National Workrights Institute in conjunction with two background screening firms, Employment Screening Resources® (ESR) and the CARCO Group. Here are some of the recommendations based upon the report, which is available online at http://www.scribd.com/doc/142787063/Best-Practices-Standards-The-Proper-Use-of-Criminal-Records-in-Hiring:

  • CONSIDER ONLY CONVICTIONS AND PENDING PROSECUTIONS – The fact that an applicant has been charged with a crime should not disqualify that applicant for a job if the applicant was not convicted. However, an employer can consider pending cases.
  • CONSIDER ONLY CONVICTIONS THAT ARE RELEVANT TO THE JOB IN QUESTION – A person who has been convicted of DUI may put the public at risk in a job that involves driving, but not in other jobs.
  • CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK – The risk that someone who has been convicted of a crime will commit another crime decreases over time. The EEOC suggests employers consider the available evidence on recidivism before rejecting an applicant. The issue is the “Look Back” time.
  • DO NOT ASK ABOUT CRIMINAL RECORDS ON APPLICATION FORMS  – “Ban the Box” and delaying learning about an applicant’s criminal record until the interview or later enables the employer to make more informed hiring decisions.
  • USE A QUALIFIED CRA TO CONDUCT RECORD CHECKS – All background screening firms (Consumer Reporting Agencies or CRAs) are not equal. Employers should consider the quality of CRAs’ procedures and results and not decide which one to use based solely upon cost. Also consider NAPBS Accreditation.
  • PROVIDE APPLICANT THE OPPORTUNITY TO CHALLENGE THE CRA’S REPORT – Whether or not required to do so by FCRA, employers should provide applicants with a prompt and convenient method of challenging information in the CRA’s report.
  • CONSIDER EVIDENCE OF REHABILITATION – People change over time. An applicant is given the opportunity to present evidence of rehabilitation (such as using the “Individualized Assessment” tool).
  • TRAIN HUMAN RESOURCES STAFF – Hiring decisions regarding applicants with criminal records require an understanding of the practical steps an employer should take to comply with federal and state law on background checks and to comply with federal, state, and local anti-discrimination laws without exposing the employer to unreasonable risks.

In June 2013, the EEOC filed lawsuits against two employers alleging they violated Title VII of the Civil Rights Act by implementing and utilizing a criminal background check policy that resulted in employees being fired or screened out for employment. Both lawsuits were brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin as well as retaliation.  A press release about the lawsuits – the first enforcement action against employers under the revised EEOC Guidance for using criminal records – is available at http://www.eeoc.gov/eeoc/newsroom/release/6-11-13.cfm.

Employment Screening Resources® (ESR) offers a complimentary whitepaper titled ‘Practical Steps Employers Can Take to Comply with New EEOC Criminal Record Guidance’ to help employers better understand how to properly use criminal records of job applicants during the hiring process. The whitepaper is available to employers by emailing EEOCwhitepaper@esrcheck.com. For more information about Employment Screening Resources® (ESR) – a nationwide background screening firm accredited by ‘The National Association of Professional Background Screeners (NAPBS®) – visit http://www.esrcheck.com/.

About Employment Screening Resources® (ESR):

LesRosenPhoto_Aug2012_SmallWhiteBorderFounded by safe hiring expert Attorney Les Rosen in the San Francisco, CA-area in 1997, Employment Screening Resources® (ESR) – ‘The Background Check Authority®’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more about ESR, visit http://www.esrcheck.com, call toll free 888.999.4474, or email sales@esrcheck.com.