Reminder on EEOC Releasing Enforcement Guidance on Arrest and Conviction Records in the Hiring Process

Contributor:  Brian Chapman, CEO
MBI Worldwide, Inc.

Background checks are often requested by employers on job applicants. These checks are done especially on candidates seeking positions that require high security or in “positions of trust”, such as in a school, hospital, financial institution, airport, or government agency. These checks are traditionally administered by private companies, sometimes for as low as $8.00 a search. Results of a background check typically include past education and employment verification, criminal history and drug screening.

The Equal Employment Opportunity Commission (EEOC) has made policy statements on the use of Criminal Records several times in the past starting in 1987. In 1990 it made a policy statement on the use of Arrest Records. They cited a local case out of the City of Cairo, along with several other cases. In 2007, it commented on the use of background checks in establishing the E-Race (Eradicating Racism and Colorism from Employment) initiative, commenting that criminal convictions may have a “disparate impact” on certain minority groups, to include Hispanic and African Americans. The EEOC currently has over one hundred investigations open on employers using background checks improperly in their hiring process.

On April 25^th, 2012, without public comment or public review of a draft copy, the EEOC released the New Guidance on the Use of Arrest and Criminal Records in the Hiring Process, it is in line and in accord with President Obama’s “Second Chance Act” initiative. For the past year, our representatives from the Society of Human Resource Management (SHRM) and National Association of Professional Background Screeners (NAPBS), National Chamber of Commerce and many others have been speaking with the five panel board of EEOC to help inform them of the dangers of limiting the use of background checks. The guidance appears to have taken some of that information in consideration, but it still has created many new “standards” for employers to consider and adopt when hiring.

The biggest change and biggest effect the guidance letter will have on employers, is they no longer will tolerate “Bright Line Rules”, which they define as a blanket “no felons”, “no person with a criminal history” type of rule during the application process. The EEOC recommends “individualized assessments” of applicants. Their reasoning being that each position needs to be based on the job duties. Although not “required”, employers will need to evaluate if there are criminal offenses that have a “demonstratably tight nexus to the position in question”, in such that an individualized assessment may be circumvented. For example a child sex offender at a day care facility. A person convicted of white collar embezzlement, being turned down for a factory line position stamping valve covers, may get the EEOC looking at your hiring policies.

Evidence an Employer should review:

1. Facts or circumstances surrounding the offense or conduct.
2. Number of offenses.
3. Age at time of conviction or release from prison.
4. Evidence that the individual performed same type of work “post conviction” without any known incidents of criminal conduct.
5. Length of employment before and after offense and rehabilitation efforts.
6. Whether the individual needs to be bonded under a federal, state or local bonding program.

The EEOC’s guidance recommends not asking about convictions on applications, but at this point has not put a blanket statement against it. This concept is referred to the “Ban the Box” effort. They want employers to ask only about relevant convictions to the position applied for on the application.

In summary the EEOC expects these “Best Practices”:

1. No Bright Line Policies.
2. Train your managers, hiring officials, and decision makers about Title VII and prohibition of employment discrimination, and keep records of the training.
3. Adjust your hiring matrix/adjudication module with your background company to reflect the new guidelines. (No Blanket Policies.)
4. Develop narrowly tailored policies for each position and convictions related to those positions.
5. Identify specific offenses that demonstrate unfitness for the job, demonstrate your reasoning in your policy.
6. Note and keep a record of consultations and research in developing your policies.
7. Limit inquiries to records that are job related.
8. Consider timing of the criminal history question, itself, so as not to deter qualified applicants from applying.
9. Keep all criminal history records confidential and separate from an employee personnel file.

I am sure there will be more debate about these new expectations as this guideline is combed through by every employment attorney in the country, but it is clear the EEOC wants to see employers better prepared in regards to defending their reasons for not hiring persons with a criminal history. They do understand the reason you need to use criminal histories and agree it is a matter of due diligence for your company and should be done.

I recommend you make sure your corporate employment attorney is aware of the new guidelines and gives you proper counsel and interpretation for your company. If you have any questions please call or email me.