Beginning November 28th, the option for applicants to self-disclose criminal records information through EasyApp will be removed. The removal of this tab in EasyApp will ensure client compliance with the growing, uneven patchwork of “ban the box” type legislation and myriad local regulations in the United States which prohibit asking about an applicant’s criminal records history during the initial employment application process. Please contact A-Check’s Compliance Department at 877-345-2021 or email email@example.com for additional information.
Best Practices for Employers in Light of EEOC Guidance on Use of Criminal Records
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.
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.
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.
On April 25, 2012 The Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights act of 1964,with the purpose shoring up the EEOC’s efforts against discrimination in the workplace based on disparate impact against persons with criminal history records.
All employers who utilize criminal records information to make employment decisions are strongly urged to review the EEOC’s guidance document and accompanying analysis, which provide the details about specific requirements employers must follow.
The Guideline addresses the use of arrests in particular and pending case record information, and strongly discourages employers from asking on employment applications if an individual has ever been arrested and/or convicted of a crime; a legislative trend in labor law also known as the “Ban the Box” initiative.
The EEOC strongly rejected, on the basis of disparate impact on protected classes, employer policies that include blanket denial of employment for specific crimes, with some exceptions, including instances when the nature of the crime has a direct nexus to the position sought or when the licensing requirements for specific professions preclude certain types of crimes.
The Guideline further develops the existing Title VII provisions to be applied by employers when making a hiring decision on persons with existing criminal records –
- Nature and gravity of the offense. Further defined by indicating that employers must take into account the harm caused by the offense, the legal elements of the crime, and the offense classification (misdemeanor or felony).
- Time elapsed since the conviction and/or completion of the sentence. Further defined by indicating that employers must look at the facts and circumstances of the offense and evaluate possible recidivism.
- Nature of the job held or sought. Further defined by indicating that employers must go beyond looking at the job title and examine specific job duties, functions, and environment in which the individual will function.
The Guideline expands on the EEOC’s expectation of employer-driven individualized assessment of prospect employees with criminal records, which include eight (8) specific determining factors, and provides a “Best Practices” section for employers to follow in the hiring process of persons with criminal conviction records.
While this guidance places a significant burden on employers to objectively analyze and assess the risk of an individual with a criminal record, the silver lining is it provides employers and employee screening companies like A-Check a clearer path to follow in the acceptable use of criminal records for employment purposes while maintaining compliance with Title VII requirements.
Please note that while we are giving you a bird’s eye overview of the new Guidance, these and several other provisions reinforced and implemented through the April 25th EEOC release are complex in nature and should be looked at closely by employers; furthermore, we strongly encourage you to seek the advice of legal counsel.
Following are preliminary resources on the subject matter that will assist you in getting up to speed with the EEOC’s new Enforcement Guidance.
View the Complete Guidance Document:
Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964
View an analysis by Labor Law Experts at Seyfarth Shaw LLP:
How Should Employers Use Criminal History in Employment Now That The EEOC Has Issued Enforcement Guidance?