EEOC Guidance for Criminal Records Hotly Debated but Remains Key Concern for Employers in 2015

 Background Check Trends

Written By Attorney Lester Rosen, Founder & CEO of Employment Screening Resources (ESR)

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) approved updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. This EEOC Guidance is having a profound impact on how employers in America hire. The EEOC Guidance has been hotly debated by supporters and critics but will remain a key concern for employers in 2015. This trend is number 7 on the Employment Screening Resources (ESR) 8th Annual ‘ESR Top Ten Background Check Trends for 2015.’ For a list of background check trends, visit http://www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.

In February 2014, a report released by the U.S. Commission on Civil Rights (USCCR) – ‘Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity Commission Conviction Records Policy’ – examined the effects of the EEOC Guidance policy on the use of conviction records by employers on African-American and Latino job applicants. The report argued that the EEOC Guidance language is flawed and vague and puts employers in a “Catch-22” situation regarding lawsuits since they can be sued for racism if they use background checks or sued for the actions ex-felons on the job if they do not use background checks. The report is available at http://www.eusccr.com/EEOC_final_2013.pdf.

In June 2014, a House Committee on Education and the Workforce Subcommittee held a hearing – “The Regulatory and Enforcement Priorities of the EEOC: Examining the Concerns of Stakeholders” – that examined worries over the EEOC Guidance that seemed to discourage employers from conducting criminal background checks on job applicants. At a hearing of the Subcommittee on Workforce Protections, the panel chairman said the EEOC Guidance “has made it more difficult for employers to ensure the safety of their customers and co-workers.” An archived webcast of the EEOC hearing is available at: http://edworkforcehouse.granicus.com/MediaPlayer.php?clip_id=263.

In September 2014, new legislation – The “Certainty in Enforcement Act of 2014” (H.R. 5423) – sought to limit the current EEOC Guidance and “amend Title VII of the Civil Rights Act of 1964 to exclude the application of such title to employment practices that are in compliance with Federal regulations, and State laws, in certain areas.” If passed, the Act would amend Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) which could affect the EEOC Guidance. The current status of the H.R. 5423 is “Referred to the Subcommittee on Workforce Protections.” More information about H.R. 5423 is available at https://www.congress.gov/bill/113th-congress/house-bill/5423.

In November 2014, the Federal Trade Commission (FTC) issued a follow-up guide – Background Checks – Tips For Job Applicants and Employees – that expanded on a March 2014 joint publication of EEOC and the FTC. The new guide further specifies the rights of applicants and employees under the federal Fair Credit Reporting Act (FCRA) and anti-discrimination laws when employers run background checks. The new guide explains that when employers run background checks, the subjects of background checks have legal rights under federal law and possibly city or state protections. The new FTC guide is available at http://www.consumer.ftc.gov/articles/pdf-0044-background-checks.pdf.

Most recently in December 2014, in the case of EEOC v. BMW Manufacturing Co., a federal court ordered the EEOC to disclose the agency’s own background check policy. The EEOC filed suit alleging that BMW’s background check policy created a “blanket” exclusion for African-American employees. BMW asked the court to compel the EEOC to reveal “documents that constitute, contain, describe, reflect, mention, or refer or relate to any policy, guideline, standard, or practice utilized by the EEOC in assessing the criminal conviction record of applicants for employment with the EEOC.” A story about this case is at http://hr.blr.com/HR-news/Staffing-Training/Background-Checks/EEOC-discloses-own-background-check-policy.

Regardless of any pushback, it is clear that the concerns raised by the EEOC Guidance are presently part of the conversation about the use of criminal records. Certainly, it can be expected that the process will undergo challenge, examination and some changes, but at the end of day, the core principal that a criminal record cannot be used to automatically deny employment is here to stay.  The FTC enforces the FCRA, a federal law that regulates background checks for employment while the EEOC enforces federal laws against employment discrimination. The complete text of the EEOC Guidance is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

To help employers better understand how to use criminal records when hiring, Employment Screening Resources® (ESR) offers a complimentary whitepaper titled ‘Practical Steps Employers Can Take to Comply with New EEOC Criminal Record Guidance.’ The complimentary whitepaper from ESR is available for employers to download at http://www.esrcheck.com/Stay-Updated/Download/.

ESR TOP TEN BACKGROUND CHECK TRENDS FOR 2015 WEBINAR

Employment Screening Resources® (ESR) will present a complimentary webinar hosted by ESR Founder and CEO Attorney Lester Rosen titled ‘ESR Top Ten Background Check Trends for 2015’ on Wednesday, January 21, 2015 from 11:00 AM to 12:00 PM Noon Pacific Time. To register for this webinar, please visit the registration link at https://attendee.gotowebinar.com/register/3656006267617568513.