The Equal Employment Opportunity Commission (EEOC) has issued a new guidance for employers regarding the use of criminal records in employment. Here are some highlights. The Guidance says that employers should not use arrest records alone to deny employment but that the conduct that led to an arrest may be relevant for employment decisions. This underlying conduct must make the person unfit for the employment (classic example- the driver arrested for driving while intoxicated). Note that some states ban questions about arrests in pre-employment inquiries. The EEOC also recommends that employers, as a best practice, not ask job applicants (in application forms) about conviction records and that such questions only be asked when clearly relevant to the job and where there is a demonstrable nexus between criminal history and the involved job duties.
The EEOC did not “ban the box,” i.e. the box found on most forms making such inquiries as some states (e.g. Maryland) have done. In all employment decisions involving criminal history, the EEOC recommends an employer make what is called an “individualized assessment” of the situation. This is based on a 1975 court decision that said when evaluating criminal history, an employer must analyze factors such as: (1) the nature or gravity of the offense or conduct; (2) the time elapsed since the conviction or completion of sentence; and (3) the nature of the job sought or held. The EEOC expects that in making such an inquiry, the employer will give the applicant/employee a chance to tell his/her side of the story and will consider extenuating circumstances before making a decision.
The EEOC notes that criminal screenings done to comply with federal law will not create liability for an employer if the inquiry does not exceed the scope of review required by that federal law. However, the EEOC guidance did not create a similar safe harbor for compliance with state laws, which the EEOC says are preempted by the federal antidiscrimination laws. The EEOC has noted that state law requirements may provide a legitimate business reason that will shield an employer from liability, but is it not automatic. Employers should consider these highlights and revise policies and practices in light of the same and train appropriate personnel. You can read the new EEOC guidance here or obtain an EEOC Q&A on the issue here. An EEOC Q & A on the issue is available here.
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