Richard D. Alaniz

One of 2013’s hallmarks in the labor and employment field is the aggressive stance taken by the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws. The EEOC’s Strategic Enforcement Plan (SEP), issued in December 2012, makes clear that the agency’s primary objective is to combat “systemic discrimination” and barriers to employment. In 2013, the EEOC filed 131 merits lawsuits (up from 122 in 2012), and 16 percent of those lawsuits were systemic suits. The EEOC’s General Counsel, P. David Lopez, has made clear that the EEOC will keep pushing the boundaries of discrimination law.

“We have an obligation to move beyond the ‘safe’ cases, and to identify and address less familiar discriminatory barriers emerging from changes in the economy, technology, and demographics,” Lopez recently said in an article.

One of the EEOC’s areas of focus has been the use of background checks, especially criminal history, and the barriers such policies pose to employment. In April 2012, the EEOC updated its guidance on the use of criminal background checks for the first time in more than 20 years. And over the last year, the EEOC has brought suit against a number of employers based on their use of criminal background checks in the hiring process. The EEOC has taken the position that use of criminal background checks in hiring has a disparate impact on African-American and Hispanic male applicants.

Now is the time for employers to review their use of criminal background checks in light of the recent EEOC activity. By following several key recommendations, employers can shore up the defensibility of their use of the background checks, while at the same time improving the quality of their hiring decisions.

Criminal Background Checks are Important Tools

Employers make use of criminal background checks because they have a significant impact in helping employers make smart hiring decisions. Using criminal background checks effectively can have a significant impact on five key areas:

• Help avoid exposure to negligent hiring/retention lawsuits.

• Increase the security of your company’s assets and employees.

• Reduce liability from inconsistent hiring or screening practices.

• Proactively reduce the risk of employee-related loss.

• Lower the likelihood that an adverse incident will occur that could jeopardize customers or employees.

Employers use criminal background checks because they need to know the character of the employee they are hiring. In addition, merely having a criminal background check policy can help your employees feel safer and more secure in the workplace.

The EEOC’s Guidance on Criminal Background Checks

In its updated guidance on criminal history background checks, the agency has stressed that it believes 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.” The EEOC has stressed that it believes employers must make an “individualized assessment” before using criminal history in an employment decision. The guidance enumerates the following factors to consider:

• The facts or circumstances surrounding the offense or conduct.

• The number of offenses for which the individual was convicted.

• Age at the time of conviction or release from prison.

• Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct.

• The length and consistency of employment history before and after the offense or conduct.

• Rehabilitation efforts, e.g., education and training.

• Employment or character references and any other information regarding fitness for the particular position.

• Whether the individual is bonded under a federal, state, or local bonding program.

The EEOC’s preferred method of conducting and using criminal history background checks in employment would create burdensome requirements for employers. In addition, the agency has even gone so far as to state that it will not defer to state and local laws that require inquiry into criminal histories for certain employees.

Recent EEOC Cases

The EEOC has been aggressively pursuing its position on how criminal background checks should be run. However, in a number of cases, the agency has suffered some significant defeats. For example, in November 2013, the Sixth Circuit handed the agency a bill for over $750,000, in a case where the agency claimed the company had a policy of rejecting applicants with felonies, even after it became apparent the company had no such policy. In another recent case, the District of Maryland rejected the EEOC’s claims that criminal background checks had a disparate impact on African-American males, finding that it had not made its case.

These cases notwithstanding, the EEOC has continued to push ahead with its opposition to many employers’ standard usage of such background checks, recently filing two more lawsuits alleging discriminatory use of criminal background checks against Dollar General and BMW. And, as General Counsel Lopez pointed out, the EEOC has aggressively appealed its losses to the appellate courts.

Tips and Recommendations

In light of the recent opposition to use of criminal background checks, employers should review their policies and make changes if necessary. By adhering to the following suggestions, employers can help limit their exposure if their use of criminal background checks is ever challenged.

• Ensure that the employment application asks the following question: “Have you ever pleaded guilty to, or been convicted of, a criminal offense?”

• Adopt a bright-line rule that an applicant who fails to disclose a conviction, seriously misrepresents the circumstances of a criminal offense, or makes any other materially dishonest statement on the application, is automatically disqualified.

• Include the following notice on the employment application or the background check authorization page:

A conviction does not automatically mean you will not be offered a job. What you were convicted of, the circumstances surrounding the conviction, and how long ago the conviction occurred are important considerations in determining your eligibility. Give all the facts so that a fair decision can be made.

• Limit consideration of convictions to those that occurred within seven years of the application date. This helps tie consideration to the more recent past, and courts have often cited to such a limitation in upholding the reasonableness of an employer’s policy.

• Some convictions will normally be cause for disqualification due to the nature of the underlying conduct. Such convictions include violent offenses, destruction of private property, sexual misconduct, felony drug convictions, or any job-related misdemeanors.

• Designate a senior manager to review a decision not to hire an applicant because of a particular conviction.

• Limit credit checks or credit history review only to those positions that are truly “credit sensitive,” i.e., access to client or company credit card information or positions that handle money, checks, or have authority to make agreements or purchases on behalf of the company.

Other Federal and State Law Implications

When conducting criminal history background checks, it is important to remember that there are other federal and states laws to consider.

For example, whenever they are conducting background checks, employers need to consider the Fair Credit Reporting Act (FCRA). This law applies whenever an employer uses a third party to collect background information on a job applicant or employee. Under the FCRA, employers must provide notice to and obtain written permission from the employee or applicant before obtaining any background check reports from third parties. In addition, if the employer relies on information obtained through the background check when taking employment action, the employer must provide notice to the applicant or employee and go through a series of steps to properly comply with the law.

In addition, many states have state-specific laws governing the use of background check information. For example, Pennsylvania state law provides: “Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” Furthermore, sometimes even cities have more stringent requirements; take Newark, N.J., which recently passed a law which “prevents employers with five or more employees who do business, employ persons or take applications for employment in the City of Newark, from asking applicants about their criminal history.”

Employers need to be aware of the specific requirements of their state and location, as well as being aware of the recent trends at the national level with the EEOC. By understanding the stances and positions of the federal government and implementing the tips and recommendations laid out above, employers can place themselves in a better position in the event their background checks policies are challenged, while at the same time getting better results from their background checks and improving their hiring decisions.

Publication date: 3/24/2014

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