On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued new guidelines for employee background checks, both for pre-employment screening and existing employee background checks. The EEOC did this without releasing a draft for public notice and comment, as is usually done before final guidelines are issued. Given this unilateral action on the part of the EEOC, it is expected that Congress and many industry groups will challenge these guidelines. Although the EEOC does not govern the FCRA (Fair Credit Reporting Act, which does in fact regulate employee background checks), an EEOC investigation of an employer’s practices can cost an employer much time and money, responding to their questions and requests for documents, even when the EEOC does not choose to litigate. So here are some suggestions to help maintain compliance with these EEOC guidelines.
1. Treat all applicants with similar criminal histories equally, particularly employees within the same job classification.
2. Do not have blanket policies excluding any individual with any criminal history. Rather you should consider (a) the nature and gravity of the criminal conviction, (b) the time that has passed since the criminal conviction occurred, and (c) the nature of the employment position that the individual is applying for or currently holds.
3. Arrest records should not be used. Employers should only consider criminal convictions. It should be noted, however, that these new guidelines do not discuss how pending records, i.e., cases which have not yet been fully adjudicated by the courts, are different from arrest records, other than to say that an employee could be placed on unpaid leave while the facts of a pending court case are investigated by the employer.
We will have to see how all of this plays out, given that the EEOC published these guidelines without providing for prior public notice and comment. I expect to see many challenges both in the court system, as well as Congress exerting their power. Clearly the ability to perform employee background checks is important for the safety of employers, their customers, and their employees… not to mention that if employee background checks are not performed, the employer’s potential liability under Negligent Hiring and Retention Liability laws goes sky high.
Best practices – you should treat all individuals equally within the same job classification, you should never discriminate, and you should always follow the disclosures and regulations that are required under the Fair Credit Reporting Act – FCRA (the federal law that governs all employee background checks).
As always, I must disclose that I am not an attorney and cannot provide legal advice (although prominent employment lawyers have told me I know more about this area of law than most employment lawyers). My blogs are provided for informational purposes only, and you should always consult a licensed attorney for legal advice. If you need a referral for a great employment lawyer, just let me know…. I know a few.
Posted by: Rudy Troisi. President, Reliable Background Screening.