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The U.S. Equal Employment Opportunity Commission on Wednesday, April 25, approved guidance on employer use of criminal background checks. In short, the EEOC guidance does not prohibit employers from considering criminal information during the hiring process. However, it does require employers to take new steps to prevent discrimination under Title VII of the Civil Rights Act of 1964.

“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 agency stakeholders,” said EEOC Chair Jacqueline A. Berrien (pictured at left).

Commissioner Constance Barker (picture at right) had a different perspective on the guidance, as she said, “All this new guidance does is to put business owners between a rock and a hard place: conduct criminal background checks to protect your employees and the members of the public you serve and you bear the risk of having to defend your action as discriminatory; don’t conduct the background check and you take the risk that an employee, or a member of the public, will be harmed.”

In short, the guidance recommends that employers:

  • Conduct an individualized assessment of an individual when considering criminal record,
  • Exclude from job applications questions about convictions, and
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

The EEOC guidance stipulates that state and local laws or regulations are pre-empted by Title VII and as a result, SHRM is concerned about  that the guidance  conflicts with numerous state laws that require criminal background checks for certain occupations or for certain industries.

Note: To help HR professionals understand the new EEOC criminal background check guidance and its impact on employment, Proskauer Rose LLP attorney, former EEOC Commissioner and current SHRM Special Expertise Panel Member,  Leslie E. Silverman has provided SHRM members with a special report on the guidance and what employers should be doing to comply with it.  For those who were unable to participate on the May 3 webcast about the guidance and what it means for HR practitioners, click HERE to register and view an archive of the webcast. 

Following the Commission meeting, SHRM released a statement noting: “SHRM is pleased that the guidance does not appear to impose a one-size-fits-all set of rules on employers and seems to take into consideration that every employer will have different needs and concerns in the use of criminal background checks in hiring.

We look forward to reading the guidance in its entirety. However, SHRM remains concerned with the potential conflict between this federal guidance and state laws that require criminal background checks in some industries and for some positions. We will continue to work with the commission to address issues related to the use of criminal background checks in hiring.”  To view a copy of the submission, click HERE.

Earlier this spring, the EEOC originally had announced plans to issue guidance at the April 25 meeting on (1) employer use of credit reports and (2) reasonable accommodation under the Americans with Disabilities Act (ADA) of 1990. However, prior to the meeting, both items were excluded from the EEOC agenda and may be considered at a later date this year. SHRM has testified in front of the Commission and met with EEOC staff on the use of credit and criminal reports in the background check process, as well as on the issue of reasonable accommodation under the ADA. 

On April 27, just two days following the issuance of the criminal record guidance, Commissioner Stuart Ishimaru, a member and former Acting Chairman of the EEOC, resigned from the commission effective April 29. Ishimaru’s departure leaves the five-member commission equally divided among the remaining four members — Democrats Berrien and Chai Feldblum and Republicans Barker and Victoria Lipnic — and calls into question whether the commission can reach agreement on new policymaking for the remainder of 2012 or until a new member is confirmed by the United States Senate. 

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