Are you, as an employer, using criminal background checks as part of your screening process for prospective employees?  Are you aware of the possible legal ramifications involved? You should be.

Criminal background checks raise a number of important legal issues: (1) the right to privacy on the part of an existing and a prospective employee, (2) the implication of criminal history reporting and employment discrimination laws, and (3) questions about the role ex-offenders who have “done their time” and want to rejoin society.   While legal cases addressing this issue date back to the 1970’s, the internet and the significant increase in the number of working-age Americans who have been incarcerated have brought the issue to the forefront.

Any policy that you, as an employer, decide to implement must be carefully designed and consistently applied so that the employee selection process is objective. Screening criteria must be narrowly tailored to avoid illegal discrimination, while also serving the legitimate business goals.  Excluding every applicant with any criminal background, regardless of the crime and its relationship to the applicant’s ability to meet the job requirements will run afoul of fair employment laws.

While several states have specific laws regarding the use of certain types of records and the time that has lapsed since the date of disposition, a person with a criminal record is not listed as a protected person or class in Federal Title VII of the Civil Rights Act of 1964 or any other fair employment law. However, according to the Equal Employment Opportunity Commission (EEOC), the use of criminal records does have a “disparate impact” because studies show that African-American and Hispanic men are more likely to have a criminal record of some type. Therefore, using a blanket rule of not employing anyone who has ever had any type of criminal record inherently violates discrimination laws.

On April 25, 2012, the EEOC issued an Enforcement Guidance document that consolidates and updates several decades worth of previous guidance documents and statements regarding the use of arrest or conviction records in employment decisions.  It is vitally important that we emphasize that this is “guidance” and not a law. In fact, the U.S. House of Representatives even more recently passed appropriations bill H.R.5326 which – among other things – provides $367 million to the EEOC but blocks the  implementation, administration, or enforcement of the EEOC’s final regulations on “Disparate Impact.”

So what does all of this mean and what should you do? The following are the Best Practices provided by the EEOC for employers who are considering criminal record information when making employment decisions.  These are guidelines used by EEOC to evaluate whether an individual has a claim. Please consult with your attorney for assistance in developing an appropriate policy.

The guidance encourages employers to develop a targeted screening program. Such a program would consider the nature of the crime, the time that has passed since the incident, and the nature of the job duties in question. The company would also need to prove that it considered those excluded by arrest or conviction and found that these applicants would not be right for the job for reasons consistent with business necessities. In general the guidance would have employers:

  • Eliminate policies or practices that exclude people from employment based on just any criminal record.
  • Train managers, hiring officials and decision makers about Title VII – Civil Rights Act of 1964 – and its prohibition on employment discrimination.
  • Develop a narrowly tailored written policy and procedures for screening applicants and employees for criminal conduct. The policy should identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs and the duration of exclusions for criminal conduct.
  • Have a process for making an individualized assessment of individuals that may be excluded because of past criminal conduct.
  • Keep notes and records and most importantly:
  • Be consistent.

This is not a comprehensive list of the EEOC guidelines which can be found at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

Employment Screening Resources founder and CEO, Attorney Lester Rosen has authored a book titled “The Safe Hiring Manual”. Mr. Rosen says that “Even with increased regulations, employers must still do background checks to ensure that new hires are qualified, capable and free from unacceptable risk.” We encourage you to stay educated and informed because applicants who don’t get hired may seek another way to “earn” money from you.

Although this EEOC guidance is not a law, we reiterate that it does represent factors that the commission looks for when deciding whether to accept a discrimination claim.

Protect yourself.

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About the Author

Author Caryn BennettCaryn Bennett has been working in the Multifamily Housing Industry since 1990 with experience ranging from onsite property manager to the current position as Compliance Manager for CIC. She earned a Bachelor of Science degree from University of the Pacific in Stockton, Ca. and has numerous FCRA and Experian course certifications. Caryn also serves as the chair of the tenant screening committees for the NCRA and NAPBS, and is a Notary Public of the State of California. When not working, she spends time with her husband, children and grandchildren. She enjoys reading and rock music.

 

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