Knowing as much as possible about an applicant’s background is key to making a great hire.  In this pursuit, most employers require job applicants to note any criminal  convictions on the employment application prior to hire consideration.  (In fact, our Silvers HR sample employment application includes very specific language about convictions.)  The Equal Employment Opportunity Commission (EEOC) recently  issued new “guidance” on what employers may and may not ask or consider in the pursuit of finding a qualified candidate or for current employees. The full EEOC Enforcement Guidance regarding the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 can be found here: (https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm).  Although California law already restricts some of these activities, employers should be aware of these new standards in order to avoid discrimination charges or lawsuits from unhappy applicants, employees or the EEOC.

Avoid asking too much

In essence, the EEOC wants employers to restrict inquiry of applicants’ or employees’ criminal history  to that which is job related.  As has been the case for a good while, inquiries about or adverse action taken as a result of an arrest (prior to a conviction) may not be made.  This is based on the premise that an individual is innocent until proven guilty.  Moreover, arrest records may result in more minorities being screened out for non job related reasons as statistics show that more minorities are arrested in the U.S. than non-monitories.   There are rare exceptions where an arrest may lead an employer to determine that “the conduct underlying the arrest …makes the individual unfit for the position in question.”  These will be unusual and we advise employers to obtain legal counsel before taking adverse action (e.g. suspension or termination) with an employee when there has only been an arrest pending a verdict.

Convictions are not necessarily a screen out factor

Convictions are often used as screen out factors in employment, but the EEOC warns that this is not an automatic bar to employment as it may not be job related or consistent with business necessity. 

The EEOC recommends that employers not ask about convictions  on job applications. They explain further that if and when employers make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.  We are not going to remove this question from our employment application at this time. (The EEOC has offered “guidance” here, not law.) However,  we are cautioning employers to avoid across-the-board policies or practices whereby anyone having a conviction is automatically denied further consideration. 

The EEOC offers the  following factors to be considered in conducting criminal screens once information about a conviction has been learned:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense, conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

The Guidance goes on to suggest consideration of the following when making an individualized assessment of criminal records:

  • The facts or circumstances surrounding the offense or conduct;The number of offenses for which the individual was convicted;
  • Older age at the time of conviction, or release from prison;
  • Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
  • The length and consistency of employment history before an after the offense or conduct;
  • Rehabilitation efforts, e.g., education/training;
  • Employment or character references and any other information regarding fitness for the particular position, and
  • Whether the individual is bonded under a federal, state, or local bonding program.

The EEOC frequently notes in the  30 page Guidance document that the employer should use a fact based analysis to determine if its policy or practice to exclude someone based on criminal conduct  is job related and consistent with business necessity.    For example, an applicant applying for a position requiring access to cash, credit card information and others’ personal property may be defensibly screened out if he was convicted of credit card fraud 18 months ago.  A DUI conviction 10 years ago would not be as defensible.

There are some exceptions to the Guidance such as where there are federal prohibitions or restrictions for individuals with certain criminal conduct records (law enforcement, child care workers in federal agencies or facilities, bank employees, port workers, TSA related positions, etc.)

It is very important that hiring managers know what they can and cannot ask in employment interviews.

Your HR department should be familiar with the federal and state requirements in notifying individuals of their rights regarding background checks and any adverse action that may result from learning about arrests or convictions.  In some cases the information gathered by a background checking firm may be outdated or inaccurate.  Timely notification to the individual prior to taking adverse action based on a background check is critical in minimizing an employer’s liability.  The notification  requirements under the Fair Credit Reporting Act (FRCA) and the California Investigative Consumer Reporting Act (ICRA) are lengthy and not covered in this article.

Copyright 2012 Silvers HR, LLC

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