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April 27, 2012

HR Fact Friday: National SHRM Federal Regulatory Alert

The U.S. Equal Employment Opportunity Commission (EEOC) just issued revised enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. While it appears the guidance will tighten the criminal background screening process, employers will retain their right to consider criminal reports.

While SHRM has not fully reviewed today’s guidance, we are concerned that the EEOC guidance may conflict with state law requirements that employers must conduct criminal background checks on certain positions, such as health and child care employees and police officers. The guidance will apparently encourage (but will not require) employers to conduct an “individualized assessment” of the position in question. Furthermore, the guidance will not prohibit job applications that have a “check the box” for disclosing prior convictions (depending on how they are used). However, such boxes on applications may run afoul of the new guidance if they are used as a blanket screening tool on job applicants.

SHRM considers criminal background checks an appropriate tool to help employers make informed hiring decisions to ensure the safety and well-being of their employees and customers.  SHRM has conducted national research that shows a majority of employers are thoughtful in the hiring process and do not take a one-size-fits-all approach to criminal background checks, as required by laws designed to prevent discrimination in hiring.

Specifically, SHRM’s 2010 survey on employer uses of criminal background checks showed:

  • 73 percent of organizations conduct criminal background checks on all job candidates
  • 19 percent of organizations conduct criminal background checks on selected job candidates
  • 20 percent of organizations conduct criminal background checks on job candidates because they are required to do so by law

Importantly, the EEOC planned to issue additional guidance today on employer use of credit reports and reasonable accommodation under the Americans with Disabilities Act (ADA) of 1990. Both items were excluded from the EEOC agenda today.

We understand that today’s criminal check guidance may lead to more, not less, confusion for employers. To help employers comply with today’s EEOC guidance, SHRM will e-mail a special report on the guidance and what employers should be doing to comply with it on Friday, April 27. Check your inboxes on Friday for the special report.

In addition, SHRM plans to offer a webcast on the new guidance and its impact on the workplace on Thursday, May 3 at 2 p.m. ET (90 minutes). Click HERE to register for the webcast.

Should you have any immediate questions, please contact Nancy Hammer, SHRM Senior Government Affairs Policy Counsel, at


This Alert was written by and reposted with the permission of:

Employment Attorney, Michael Patrick O’Brien
Utah State SHRM legal director
Phone: 801-534-7315


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