New Guidance For Criminal Records Used By Employers For Background Checks


The EEOC issued updated Enforcement Guidance on the use of arrest and conviction records in employment decisions. EEOC Chair Jacqueline Berrien says, "The new guidance clarifies and updates the EEOC's longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers and many other stakeholders."

The EEOC vote has been anticipated by employers who expressed concern that changes to current guidelines have the potential to impede them from continuing to use criminal background and credit checks during the hiring process.

Despite employer concerns, the EEOC determined updated guidance was necessary. The focus of the changes to previous policy: Use of criminal background checks, specifically, arrests and convictions, as a screening tactic when evaluation job applicants. Under the new guidance, employers must show that a criminal record exclusion is "job related and consistent with business necessity," or the exclusion is unlawful under Title VII of the Civil Rights Act (Title VII).

Additionally, the new EEOC guidance emphasizes that arrests and convictions must be treated differently. According to the EEOC's new guidance, an arrest is not sufficient to deny employment. An employer may make the employment decision based upon the conduct underlying the arrest and determine if the conduct makes the applicant unfit for the job. Further, the EEOC determined that a policy excluding everyone with a criminal record from employment is not job related and violated Tiltle VII.

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The EEOC provides the following examples of best practices to employers considering criminal record information when making hiring decisions:

* Eliminate policies or practices that exclude people from employment based on criminal record
* Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct
* Train Managers, hiring officials and decision makers on how to implement the policies and procedures consistent with Title VII.
* 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 and use them for only the purpose for which they were intended.


There is more to come on the new EEOC Enforcement Guidance.

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