THE MAGAZINE

Criminal Records Restrictions

By Rod M. Fliegel and Jennifer L. Mora

How and when companies can request and use a person’s criminal record information during the hiring process is highly regulated at every level of government. Not only do federal, state, and local laws and regulations covering these activities sometimes conflict, but they have also been in flux in recent years. Employers must stay abreast of changes in these ex-offender protection laws and make sure that they adhere to any restrictions being mandated. Employers that fail to do so could end up the defendant in a legal action brought either by an allegedly aggrieved party, a state administrative agency, or the Equal Employment Opportunity Commission (EEOC), which has oversight and enforcement authority in this area.

Federal Actions

In June 2013, the EEOC filed two new lawsuits involving background screening—one in South Carolina and one in Illinois. The lawsuits allege that the employers discriminated against employees through criminal-background-check policies. According to the EEOC’s announcement, the lawsuits are “the latest in a series of systemic cases the commission has filed to challenge unlawful hiring practices.”

The lawsuits come on the heels of guidance issued by the EEOC in April 2012. The guidance, titled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, provides an interpretation of the existing law. The guidance recommends that a background-screening program should be linked to a specific job function. This means that an “employer needs to show that the policy operates to effectively link specific criminal conduct and its dangers with the risks inherent in the duties of a particular position.”

An employer may deploy a “targeted screen” based on three conditions—the nature and gravity of the offense, the time that has passed since the offense, and the nature of the job. The guidance adds some details in describing how these factors should be used, but most importantly, it takes the position that an “individualized assessment” should be made by an employer in virtually all instances before the employer disqualifies an individual based on past criminal conduct. The guidance sets out several specific factors for an em­ployer to consider in this assessment, including the facts or circum­stances sur­rounding the offense, age at the time of conviction, the length and consistency of the employment history, rehabilita­tion efforts, and education and training. Employers should also consider evidence that the individual has performed the same type of work, post-conviction, with no known incidents of criminal conduct.

If an employer conducts an individualized assessment, the guidance suggests that the employer inform the applicant that he or she may be excluded based on the past criminal conduct and provide the individual with the opportunity to establish that the exclusion should not apply.
 

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