The guidance recognizes that some state and local laws may restrict or prohibit the employment of individuals with records of certain criminal conduct. However, in the EEOC’s view, federal law pre-empts state and local laws. As a result, the EEOC takes the position that if an employer’s exclusionary policy or practice is not job-related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation will not shield the employer from liability.
The EEOC’s updated guidance concludes with recommended best practices. The guidance urges employers to create a “narrowly tailored written policy and procedures for screening for criminal re-cords.” In keeping with the best practices, employers must identify essential job requirements and the “actual circumstances under which the jobs are performed,” determine the specific offenses that may demonstrate unfitness for performing such jobs, and determine the duration of exclusions for criminal conduct, including an individualized assessment. The EEOC further recommends recording the justification for the policy and procedure, providing related training and education to managers, and maintaining criminal record information in a confidential manner.
As noted, some states are enacting new laws that make it discriminatory for a company to refuse to hire ex-offenders in certain circumstances. Other states are taking steps to protect companies from the actions of ex-offenders once hired.
California, Massachusetts, New York, and Wisconsin already extend protections to ex-offenders. A new law passed this year makes it illegal for Indiana employers to discriminate against ex-offenders, including refusing to employ any person who has had his or her conviction or arrest record expunged or sealed as allowed by law. Employers that seek criminal history information from candidates are prohibited from inquiring about expunged convictions or arrests. In addition, effective December 2013, North Carolina employers will no longer be able to inquire on the employment application, during an interview, or “otherwise” about any criminal record that has been expunged.
In September 2013, Texas joined a handful of states that afford employers a measure of protection against tort claims arising from misconduct by an ex-offender. The Texas law will preclude civil suits against an employer for negligent hiring or failing to adequately supervise an ex-offender based on evidence of the ex-offender’s prior conviction.