CONDUCTING CRIMINAL BACKGROUND CHECKS (Part III)

By Jonathan K. Driggs, Attorney at Law

Over the last few months, we’ve been discussing the Equal Employment Opportunity Commission’s recently issued guidance to employers on the use of Criminal Background Checks (CBCs).  In this guidance, the EEOC emphasized that employers should only conduct CBCs when it is “job-related and consistent with business necessity” when screening job candidates. Job-related and consistent with business is one of those funky legal phrases that simply means employers should take into account the following factors:

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

As explained in its recent guidance, the EEOC expects employers to do the following when conducting CBCs:

  1. Develop a “targeted screen” using the three factors listed above for the job in question.  The EEOC wants employers to identify in advance the type of criminal convictions which might be problematic for a particular position.  For example, for a position that has access to sensitive financial information, an employer could identify a list of basic categories of theft/dishonesty-related crimes that would be problematic (e.g., identity theft, fraud, burglary).  The employer should then determine the relevant time period to consider for past convictions (e.g., five years, etc.)  While there is no specific formula to use, the EEOC is clearly signaling that it will scrutinize time frames carefully in favor of applicants (including reviewing recidivism data to determine when an individual is no more likely to recommit the crime compared to the average citizen).
  2. Conduct an individualized assessment prior to screening out.  Let’s say that a candidate’s CBC for a financial position reveals a conviction three years ago for identity theft.  Before excluding the candidate from consideration, the EEOC expects the employer to: 1) provide notice to the candidate that he/she may be screened out because of the conviction, 2) provide the candidate an opportunity to demonstrate that the exclusion should not be applied due to his/her particular circumstances; and 3) consider whether the additional information provided by the candidate warrants an exception.  Employers should create and retain appropriate documentation of their individualized assessment processes (as a result of this new guidance, I believe that such processes will be a major focal point of EEOC investigations).

It is not possible in a forum like this to explain all of the nuances related to the EEOC’s CBC guidance.  For employers using CBCs, it is worth taking a look at the guidance and reading through the examples.  The guidance can be found at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

While it is important to understand that the EEOC’s guidance does not currently have the force of law—and aspects of it will most certainly be challenged in court—the EEOC will nevertheless be the first decision-maker to rule on these cases (employees must file with the EEOC before going to court).   So, unless an employer wants to be the “test case” and spend lots of money and time fighting the EEOC, it’s best to give serious consideration to the EEOC’s position on CBCs.

In light of this new guidance from the EEOC, the following are some do’s and don’ts for employers when using CBCs:

  • Employers should immediately review their CBC policies in light of the EEOC’s guidance and adjust their policies accordingly.  With information on this topic being widely available on the internet, job seekers are becoming increasingly informed about their rights—employers shouldn’t be surprised to be challenged!  Employers who use CBCs frequently may want to review their policies with legal counsel.
  • Employers should avoid “blanket” or “across the board” screens which have little if any connection to the three factors defining “job-related and consistent with business necessity” (see above), or which do not provide an opportunity for individualized assessment.  For example, policies which automatically screen out candidates who have any type of conviction will most certainly run into trouble with the EEOC (this includes online application systems which reject candidates as soon as they answer “yes” to the question, “have you ever been convicted of a crime?”)
  • The EEOC’s guidance does not deal with the issue of candidates misrepresenting their criminal history on applications (e.g., declaring no convictions only for the CBC to reveal one).  To broaden an employer’s options, the application should include a statement that any misrepresentations may exclude the candidate from consideration.  The employer’s track record of enforcing this policy should be carefully reviewed prior taking any action (in addition to reviewing any other nuances related to the situation).

While running CBCs has become more complicated for employers, this does not mean that there aren’t a lot of legitimate uses for them.  Employers who provide services to children, at-risk adults, medical patients, etc., typically have very legitimate reasons to use CBCs.  So do many other employers who have employees working in other sensitive jobs or industries.  The issuance of the EEOC’s guidance should not be construed to mean that employers can’t use CBCs anymore.  Employers, however, should use CBCs in a manner that is… (everyone repeat after me!) “job-related and consistent with business necessity.”

 

This article should not be construed as legal advice.  Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.

 

Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission.  www.jkdlawpc.com

 

Call an HR Attorney as often as you need, for a low, fixed monthly fee!  In partnership with Payroll Experts, Jonathan is offering his “HR Legal Compliance Service” to Payroll Experts clients at discounted rates.  For a low, fixed monthly fee, you can call Jonathan as often as you need to get answers to your HR legal compliance and employee relations questions.  Get rid of the attorney’s ticking clock!  For more information, please contact Payroll Experts at (801) 221-3732 and ask about the “HR Legal Compliance Service.”

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