Is your employee background screening process illegal?

If you use criminal background checks in your hiring decisions, you’re in the majority – 92 percent of employers subject job candidates to criminal backgrounds investigations. And usually for good reasons; to combat theft and fraud, address concerns about workplace violence, and meet state and local laws, like licensing requirements or those requiring background checks for particular positions. Whether you can make personnel decisions based on a criminal record often presents a complicated legal issue that implicates state and federal law.

A new set of guidelines issued by the Equal Employment Opportunity Commission (EEOC) indicates that an employer’s good reason to employ criminal background checks may not be enough. If you have a policy of using criminal background checks to screen candidates – for all positions or even certain categories of jobs – you may be at risk for EEOC enforcement actions and lawsuits.

The EEOC recently released new guidance clarifying the agency’s long-standing policy on employers’ use of criminal background checks in hiring decisions. The lengthy report details the EEOC’s enforcement of Title VII, the federal law that prohibits discrimination in hiring based on factors like race and ethnicity, and how use of criminal background checks may be discriminatory and violate the law.

Hiring decisions that treat criminal history information differently for different applicants based on their race or national origin – rejecting Hispanic or African-American applicants while interviewing white candidates with histories of similar criminal conduct – is obviously discriminatory. But the report makes clear that even general hiring policies related to criminal history – screening out all applicants with criminal records, for example – may be discriminatory, even if the employer doesn’t intend it to be.

The EEOC isn’t saying that employers can’t use information about applicants’ criminal histories in hiring decisions, but that hiring policies that exclude candidates based on criminal history should be job related and a business necessity – in other words, that the policy links specific criminal conduct and its dangers, with the risks involved in the duties of a specific job.

The EEOC guidelines offer employers some best practices for using criminal background checks and information about criminal history in hiring policies and hiring decisions.

Treat arrests and convictions differently – an arrest alone is not a sufficient reason to reject a candidate, because arrests are not proof of criminal conduct.

Eliminate general hiring policies or practices that exclude candidates from employment based on any criminal record and replace them with narrowly tailored written screening practices that consider the nature of the job, the nature and gravity of the criminal conduct and the time elapsed since the conduct. Identify essential requirements for specific jobs and the actual circumstances under which jobs are performed and determine the specific criminal offenses that may demonstrate unfitness for performing these jobs, based on available research.

Use an individualized assessment in the hiring process that allows candidates the chance to explain a criminal history report before they are rejected outright. The assessment should include notice to the candidate that he has been screened out because of a criminal conviction and the opportunity explain why excluding him from employment is not warranted in his particular circumstances. The assessment can’t be a mere formality – part of the procedure should be consideration of the additional information and whether it warrants an exception to the job-related hiring exclusion

One important issue that the EEOC’s new guidance raises for the security industry is whether complying with state or local laws like licensing or permitting laws that may prohibit candidates with criminal records from holding certain jobs will protect employers from EEOC enforcement or lawsuits. The guidance expressly states that federal law trumps state and local laws, and compliance with these laws is not an acceptable basis for excluding candidates based on past criminal history unless the law’s exclusion is job related for the particular position and addresses serious safety risks related to that position. This may create a conflict for employer depending on a state’s specific licensing or permitting laws for electronic security providers. Make sure to consult counsel to confirm compliance with this federal law and any applicable state laws.

About the author: Eric Pritchard is a partner in Kleinbard Bell & Brecker LLP, Philadelphia, a commercial law firm with a national practice in the electronic security and life safety industries. This column does not constitute legal advice; contact an attorney with specific questions.

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