Use of Criminal Records Data – Best Practices

Best Practices for Employers in Light of EEOC Guidance on Use of Criminal Records

Summary

Employers’ use of background screening for job applicants should be reevaluated after the EEOC’s April 25, 2012, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

The EEOC noted that an employer’s facially neutral policy can adversely affect an employee or applicant with a criminal history and have a disparate impact based on prohibited characteristics, such as race and national origin.

Per the EEOC’s Guidance, an employer cannot now simply reject an applicant because of his/her criminal record under an employer’s exclusionary policy. In the wake of the EEOC’s Guidance, employers using criminal background screening should now be prepared to prove a solid business reason (job necessity) for seeking the information.

Best Practices

The EEOC’s Guidance does not mean that employers should abandon [Criminal Records] background screening altogether. In fact, to do so could run afoul of an employer’s obligation to use reasonable care when hiring employees and lead to liability if third parties are harmed by an employee. Many courts have held an employer liable for an employee’s actions if the employer fails to conduct a reasonable investigation into the employee’s background prior to hiring.

In an effort to comply with these obligations without running afoul of Title VII with respect to criminal background policies, employers should at a minimum review their policies. In this regard, it is recommended that:

Employers develop a narrowly tailored written policy and procedures for screening applicants and employees for criminal conduct.

Employers identify in the policy the essential job requirements and the actual circumstances under which the jobs are performed.

The policy should determine the specific offenses that may demonstrate unfitness for performing such jobs and the duration of exclusions for criminal conduct.

Employers record the justification for the policy, procedures and exclusions, including a record of consultations and research considered in crafting the policy and procedures.

Employers train managers, hiring officials and decision makers on how to implement the policy and procedures consistent with Title VII.

Employers need to craft policies and procedures for conducting criminal background checks carefully, considering both the new EEOC Guidance and the need to provide a safe workplace with honest, productive employees.

Source: Reevaluating Employment Background Checks after the EEOC’s Guidance.Wilson Elser Moskowitz Edelman & Dicker LLP. By Sherril M. Colombo and Michelle Bergman.

NOTICE: The material presented in this communication is not to be construed as legal advice from A-Check America, Inc. but rather, a summary of the research conducted and material gathered on the subject matter. For additional information or guidance, please consult qualified legal counsel.

Consumer Financial Protection Board (CFPB) to Take Over FCRA Enforcement from FTC

FCRA Enforcement ad Interpretation Responsibility Shifting from FTC to CFPB

Beginning January 1, 2013, the responsibility of interpreting and enforcing requirements under the FCRA will shift from the Federal Trade Commission (FTC) to the Consumer Financial Protection Board (CFPB).

The following forms will be required to be modified by that date to comply with new regulations set forth by the Consumer Financial Protection Board (CFPB):

  1. Fair Credit Reporting Act (FCRA) Summary of Rights: This is a standard notice provided to subjects of background screening reports before the process (issued by the employer) and after the process with the copy of their report when requested (provided by the Background Screening Company) detailing the consumer’s rights under the FCRA. Additional situations for issuance of this document include when a pre-adverse action notice is sent by the employer to an applicant or employee. A-Check’s report generated by A-Check will contain the updated FCRA Summary of rights on or before the deadline of January 1, 2013.
  2. Notice to Users of Consumer Reports of their Obligations under the FCRA: This is the document provided to each individual user of background screening reports by the background screening company outlining the guidelines for the compliant use of background screening reports. The updated notice will be posted on the ACD login page.
  3. Notice to Furnishers of Information of their Obligations under the FCRA: This document is provided to researchers and other types of information brokers by the background screening companies in specific situations. This notice will be provided individually to A-Check suppliers.

Since the inception of Background Screening, the Federal Trade Commission has been the agency responsible for interpreting the FCRA, however the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173), which was signed into law by President Obama on July 21, 2010, transferred rulemaking authority for the FCRA to the CFPB. The newly created CFPB has now become the agency primarily responsible for interpreting the FCRA.

A-Check America is currently developing our strategy to comply with this new regulation well before the January 1, 2013 deadline.  A-Check Documents will be revised and distributed to each our clients in a timely manner to ensure their own compliance.  In the meantime, if you have any questions, please feel free to contact our Compliance Department 877-345-2021 or by email at compliance@acheckamerica.com.

For a quick read from Labor Attorneys at Seyfarth Shaw detailing the effect of this change, please read the One Minute Memo – New FCRA Forms will be Required by January 1, 2013 (PDF) by Pamela Q. Devata and Natascha B. Riesco.