The U.S. Equal Employment Opportunity Commission (EEOC), the Government agency that enforces federal laws prohibiting employment discrimination, will hold a public meeting on Wednesday, April 25, 2012 to vote on proposed ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964’ to revise guidance on the use of criminal records by employers for employment screening background checks. The meeting will take place at 9:30 A.M. Eastern Time in the Commission Meeting Room on the First Floor of the EEOC Office Building at 131 “M” Street, NE in Washington, D.C.. For more information, visit: http://www.eeoc.gov/eeoc/newsroom/release/4-19-12.cfm. The EEOC meeting on proposed changes to guidance for criminal records usage was eagerly anticipated by employers. In a letter dated April 18, 2012 regarding ‘Pending EEOC Guidance on Criminal Background Checks,’ a broad coalition of associations – including the U.S. Chamber of Commerce, the Society for Human Resource Management (SHRM), and the National Association of Professional Background Screeners (NAPBS) – wrote to the EEOC to express “concerns over any forthcoming changes to the long-standing and appropriate EEOC guidance that would impede the ability of employers to continue to use criminal background checks to make informed hiring decisions.” The letter further states: “The undersigned entities represent for-profit and non-profit employers, including those who work with vulnerable populations, and other entities concerned about the critical need to protect the safety of people and property in workplaces across the United States. These organizations and their members believe that criminal background checks are an important tool in efforts to help protect employees, customers and the public at–large from workplace violence, fraud and theft.” In an April 2012 letter from the Chamber of Commerce to the Office of Management and Budget (OMB) regarding ‘Forthcoming Significant Guidance from EEOC on Employer Use of Credit and Criminal History,’ the Chamber urged the OMB to require the EEOC to allow a review by the OMB and public input as the EEOC prepared to issue new enforcement guidance on the use of criminal background checks and credit background checks by employers. The letter stated 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. Any change to the EEOC policy on criminal records would affect the many employers performing criminal background checks on job applicants.  According to a 2010 SHRM survey ‘Conducting Criminal Background Checks,’ more than nine out of ten employers polled conducted criminal background checks on some or all job candidates as part of their pre-employment screening programs. The survey found nearly three out of four organizations, 73 percent, conducted criminal background checks on all candidates, while another 19 percent conducted criminal background checks on selected candidates. The current ‘EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964’ available at http://www.eeoc.gov/policy/docs/convict1.html modified the existing policy with respect to the establishment of a business necessity for denying an individual employment due to a conviction record. The modification did not alter the EEOC’s position that policies or practices of employers that exclude individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics since they are convicted at a higher rate and is unlawful under Title VII without a justifying business necessity. As a result, when employers exclude individuals from employment on the basis of their conviction records they must consider the following three factors to determine whether their decision was justified by business necessity:

  • The nature and gravity of the offense or offenses;
  • The time that has passed since the conviction and/or completion of the sentence; and
  • The nature of the job held or sought.
In addition, current EEOC guidance on criminal records also holds that any absolute bar to employment based on the fact that an individual has a conviction record – for example, a “blanket policy” by employers to not hire any job applicants with any sort of criminal history – is unlawful under Title VII. In July 2011, the EEOC held a public meeting held a meeting that focused on the use of criminal records by employers for employment background checks to see if arrest and conviction records were an unfair and discriminatory hiring barrier to ex-offenders. 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. More information about the July 2011 EEOC meeting is available at: http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm. In response to the EEOC inviting members of the public to submit written comments on any issues discussed at the July 2011 meeting, background check expert Attorney Lester Rosen, founder and CEO of Employment Screening Resources (ESR), submitted a Letter of Public Comment to the EEOC that pointed out important considerations not sufficiently addressed at the meeting to give the EEOC a full understanding of all of the facts surrounding criminal background checks. Rosen, author of ‘The Safe Hiring Manual,’ the first comprehensive guide to employment screening, wrote: The use of criminal records is a difficult issue because it involves important American values that can seem to conflict.  On one hand, we value public safety and a safe workspace with honest and qualified employees. All Americans have a right to be safe and secure in their workplace.  On the other hand, as a society we believe in second chances, and that a person’s past should not hold him or her back forever, particularly for more minor offenses. The issue is how to draw lines that both protect innocent people and, at the same time, does not burden the taxpayers by creating a permanent class of unemployed people. Unless an ex-offender can get a job, they cannot become a taxpaying and law abiding citizen and the taxpayers end up building more prisons then they do schools or hospitals, so it is a matter of finding a good balance. In seeking to balance these competing interests, Rosen hoped the EEOC would recognize that there are “real world” issues that need to be considered that include:
  • Employers face significant risk if they hire a person that is dangerous, unfit, unqualified or dishonest is hired.
  • A professional background screening firm – also known as a Consumer Reporting Agency or CRA – operating under the federal Fair Credit Reporting Act (FCRA) is an entirely different industry than the cheap and instant online database searches that can result in inaccurate data. A CRA preforms screenings under the strict standards of the FCRA based upon the applicant’s written consent, as opposed to data aggregators that sell data to anyone with a credit card.
  • Background screening firms are NOT the employment police, but professionals that gather relevant information so employers can make intelligent decisions. Background check reports provided by a Consumer Reporting Agency protects both employers and job applicants by providing employers with reports with much greater accuracy that filter out information that cannot be used,  and providing job applicants with an immediate avenue to contest any information in the report.
  • The background screening industry as a whole has been the primary reason why employers have become aware of the EEOC position on the overly board or automatic use of criminal records, since background screening firms deal with a high percentage of U.S. employers and typically include client education on how to properly consider the use of criminal records.
  • The issue of inaccurate records comes primarily from the data aggregator firms. A simple solution is to require any employer to only utilize information that has been confirmed as accurate and up to date from a primary source, such as a courthouse search.
  • Over 150 background screening firms have joined an industry group called Concerned CRAs that opposes the use of databases provided by data aggregators for employment purposes, without first reconfirming that the information is currently complete, accurate and up-to-date. More information is available at http://www.concernedcras.com/.
“While it is critically important to society that everyone have a second chance,”  Rosen concluded in the comment letter, “citizens also have a right to be free of violence and fraud in their everyday dealing, either as a member of the public, an employee or employer.”  The Public Comment letter from Attorney Lester Rosen to the EEOC is available at https://www.esrcheck.com/EEOC-and-the-Use-of-Criminal-Records-for-Employment.php. Rosen also predicted that criminal background checks of job applicants by employers will come under greater scrutiny by EEOC in 2012. The EEOC’s actions, coupled with the growing “Ban the Box” movement seeking to remove the criminal history question from job applications, shows that employer use of criminal records is under fire now more than ever and led Rosen to select this trend as Number One on the ‘Employment Screening Resources (ESR) Top 10 Trends in Background Checks for 2012’ available at https://www.esrcheck.com/ESR-Top-10-Trends-in-Background-Checks-for-2012.php. 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 https://www.esrcheck.com/ or call 415.898.0044. Sources: http://www.eeoc.gov/eeoc/newsroom/release/4-19-12.cfm https://www.esrcheck.com/file/IndustrySignOnLetterToEEOC_CriminalRecords_4_18_12.PDF http://op.bna.com/dlrcases.nsf/id/kmgn-8szk2j/$File/ChamberCrim.pdf http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx http://www.eeoc.gov/policy/docs/convict1.html http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm https://www.esrcheck.com/EEOC-and-the-Use-of-Criminal-Records-for-Employment.php 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 https://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 [email protected].]]>

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