Employers regularly use criminal background checks and credit checks to narrow their list of applicants. High unemployment has vastly expanded the applicant pool and employers now have the luxury of selecting only the most qualified candidates. The Equal Employment Opportunity Commission (“EEOC”) had been largely quiet on the legality of these somewhat invasive tests since 1990 but has now issued new guidance.
CAN I STILL DO CRIMINAL BACKGROUND CHECKS ON APPLICANTS?
Yes. The ability to do a background check on a job applicant has not been substantially limited. What has been greatly changed is the employer’s use of information obtained in a background check. Employers have been asked by the EEOC to no longer throw out an application because of a prior arrest or general conviction.
The EEOC has stressed the difference between an arrest and a conviction in order to help those who have been arrested but never convicted of crimes. It is important for an employer to note that the implications of a conviction are vastly different than a mere arrest. A conviction or a guilty plea is much more likely to be considered an acceptable reason for exclusion from the applicant pool than an arrest. The EEOC now holds that exclusion cannot be based solely on an arrest but that an employer can conduct its own investigation and determine that the conduct underlying the arrest is sufficient to exclude an employee.
HOW DO I USE THE INFORMATION I GAINED IN MY BACKGROUND CHECK?
The most important thing that the EEOC has made clear in its new guidance is that any conviction used to exclude a prospective employee from hiring or used to fire an employee is that the conviction be related to the tasks required of the employee. Employers should look at convictions in a race/gender/sexual orientation neutral manner (per Title VII). The decision should be based on a simple inquiry: does the conviction in question seriously hamper the employee’s ability to do his or her job? If so, the conviction means the employer truly would not be able to hire the employee in good faith.
Certain types of crimes are obvious exclusions for employers, such as embezzlement for a banking position or child abuse for a day care facility. What will be more difficult for employers will be convictions that show character flaws but are not directly related to a position. Should multiple assault convictions be used to exclude someone from high stress customer service position?
HOW DO I ENSURE BEST PRACTICES AT MY BUSINESS?
The EEOC has provided the following examples of best practices in their guidelines:
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- 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. Identify the criminal offenses based on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence. Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
- Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
WHAT EFFECT WILL THIS HAVE ON MY BUSINESS?
These new guidelines are a policy statement for the EEOC and guidance for everyone else. The guidance portion of it effectively puts the public on notice that this is the EEOC’s position. These guidelines are not rules or regulations subject to the same level of scrutiny as other administrative issuances. They are not owed deference by any court or considered binding authority on anyone. This is, however, the stated policy of the EEOC and the type of scrutiny your business can expect to face if you are investigated.
In order to truly make sure you are engaging in best practices regarding criminal background checks, speak to an attorney and review your internal policy.