Last week, I wrote a blog about best practices for conducting legal criminal background checks.  Also last week, the Equal Employment Opportunity Commission (EEOC) updated and released enforcement guidance on employers’ consideration of arrest and conviction records in employment.

The updated guidance is available directly from the EEOC website in PDF form, and includes a list of employer best practices.  The EEOC does not appear to have made any strict rules that would prevent employers from considering conviction records, but attempts to provide some guidance.  The Commission continues to embrace the long-standing three-factor test that was first established by the Court in Green v. Missouri Pacific Railroad Company:

• The nature of the offense;
• The time elapsed since the conviction or completion of sentence; and
• The nature of the job sought or held.

New in the Guidance Report:

• Application Questions – Although the agency did not ban employers from using the checkbox on an application, they did recommend against it as a best practice.  Instead, the agency recommends employers only ask applicants in the case where criminal history may be relevant.
• Arrest Records – It is important to note that arrest records, standing alone, may not be used to deny employment to an individual.  However, employment decisions may be made based on the conduct that underlies the arrest.  Consequently, an individual may be denied employment or terminated if the arrest is relevant and makes the individual unfit for the position.
• Individualized Assessment – This is the biggest development in the EEOC’s guidance.  An “individualized assessment” occurs when the employer: informs the applicant or employee that he or she is being screened due to a criminal record; individual is provided with opportunity to respond; and the employer considers extenuating circumstances when making its final decision.  The EEOC states that employers who develop their targeted screen based on the Green factors and conduct an “individualized assessment” can avoid Title VII liability.  According to SHRM’s survey, 88 percent of respondents indicated they allow the individual to explain the results of the background check, so it appears many employers are already engaging in this best practice.
• Compliance with Federal Law – Employers who are conducting a criminal background check in order to comply with another Federal law will not violate Title VII.  However, any screening that exceeds the scope of the applicable law will be scrutinized.
• Compliance with State Law – Title VII pre-empts state and local laws that are in conflict with it, so an employer who conducts criminal background checks in accordance with state law will not be protected from liability.  Some employers could end up in a no-win situation as a result.

Employers’ best bet now is to review their criminal background check procedures in light of the new guidance.