EEOC

Equal Employment Opportunity Comission (EEOC)

The Fair Credit Reporting Act imposes, among other obligations, the requirement of using consumer reports accessed for employment purpose in compliance with federal and state Equal Employment Opportunity (EEO) regulations. Information relating to employment issues and the EEOC can be found on the EEOC’s Employers pagehttp://www.eeoc.gov/employers/index.cfm.

With regard specifically to criminal records, the EEOC recently issued updated guidance explicitly relating to the use of arrest and conviction records in employment decisions. The guidance document, Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 is available on the EEOC’s website http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

To ensure compliance with this newly issued Guidance, employers are encouraged to evaluate their current on-boarding practices to determine compliance with the Guidance document and consult with legal counsel. 

In its Guidance, the EEOC indicates that employers should develop targeted screening when utilizing criminal records in employment decisions. This targeted screening must, at the very least, consider the following “Green” factors (Green v. Missouri Pacific Railroad, 523 F. 2d 1290 (8th Cir. 1975)):

• Nature and gravity of the crime
• Harm caused
  
• Legal elements (specifics of crime)
  
• Classification of offense (misdemeanor v. felony)
  
• Time since conviction
  
• Nature of the job
  

The Guidance also indicates that targeted screening must be based on a written policy, which according to best practices outlined in the Guidance, must include the following:

• Essential job requirements for each position for which a criminal background check will be utilized
• Documentation for the validating the policy
  
• Including research and data gathered for the formulation of the policy
  
• Training for individuals involved in hiring to ensure compliance with Title VII
  
• Offenses that would not be acceptable for the job along with a timeframe for how long the offenses would be considered unacceptable for the position
  
• “Individualized assessment” for applicants who are convicted of any of the  crimes identified as unacceptable in the policy document
  

If an adverse decision may result from the evaluation of the targeted screening policy document, the consumer must be informed prior to making the adverse decision and  the employer must offer an “individualized assessment”, before the final adverse decision is made. This “individualized assessment”, according to the Guidance document, must be comprised of the following factors:

• 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 and 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 offers the following best practices through the Guidance:

• Eliminate policies or practices that exclude people from employment based on criminal records
• Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination
  
• Develop a policy for  utilizing criminal records in the screening process
  
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended
  

In addition to the recommended best practices, the EEOC has provided a Q & A document that answers issues related to the guidance:http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.

To ensure compliance with this newly issued Guidance, employers are encouraged to evaluate their current on-boarding practices to determine compliance with the Guidance document and consult with legal counsel.

A resource for evaluation of best practices is the law firm of Seyfarth Shaw, LLP (http://www.seyfarth.com/) which has recently issued a Strategy & Insights publication relating specifically to the EEOC guidance (http://www.seyfarth.com/publications/si042712). This document provides a high-level overview of suggested practices for the use criminal history in light of this Guidance. The following excerpts from the document, authored by Pamela Devata (http://www.seyfarth.com/PamelaDevata) and Kendra Paul (http://www.seyfarth.com/KendraPaul), illustrate the initial steps that an employer should undergo to start down the path compliance:

Based on the new Guidance, employers should evaluate their pre-employment and hiring practices. Because the EEOC will be enforcing Title VII with this new Guidance in mind, employers are well advised to consider adjusting their use of criminal history information in accordance with it. Whether or not the EEOC prevails in any of its enforcement actions or lawsuits, the employers in these actions will be forced to spend substantial financial resources to defend and resolve them. The new Guidance itself sets forth a few employer “best practices:”

Employers should eliminate policies or practices that exclude people from employment based on any criminal record.

• Employers should train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.
• Employers should develop a narrowly tailored written policy and procedures for screening for criminal history information. The policy should: (i) identify essential job requirements and the actual circumstances under which the jobs are performed; (ii) determine the specific offenses that may demonstrate unfitness for performing such jobs (i.e., identify the criminal offenses based on all available evidence); (iii) determine the duration of exclusions for criminal conduct based on all available evidence (i.e., include an individualized assessment); (iv) record the justification for the policy and procedures; and (v) note and keep a record of consultations and research considered in crafting the policy and procedures.
  
• Employers should train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.
  
• When asking questions about criminal history information, employers should limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  
• Employers should keep information about applicants’ and employees’ criminal history information confidential and only use it for the purpose for which it was intended.
  

Ms. Devata is a partner in the Labor and Employment Practice Group of Seyfarth Shaw LLP. She specializes in all aspects of employment defense including counseling, training, and litigation. In addition to these areas, Ms. Devata has a special emphasis on the Fair Credit Reporting Act (FCRA) and state laws effecting background screening. She counsels both employers and providers of background information on compliance requirements under the FCRA and related state laws, and has been involved in litigation regarding these issues. Ms. Devata is a past member of the Board of Directors of the National Association of Professional Background Screeners (NAPBS).