The U.S. Equal Employment Opportunity Commission (EEOC) recently issued new Enforcement Guidance with respect to an employer's consideration of arrest and conviction records in employment decisions. The guidance discusses employer practices that the EEOC considers permissible and impermissible based on its interpretation of Title VII of the Civil Rights Act of 1964. It bars the use of arrest records alone in making adverse employment decisions. The guidance also requires that any policy excluding individuals with past convictions from consideration for a position be narrowly-tailored to both the position in question and business necessity.

Best practices.

The EEOC suggests that employers eliminate policies or practices that exclude individuals from employment based on their having any criminal record whatsoever, as this will never be consistent with business necessity. Additionally, employers using criminal background information in employment decisions should create a narrowly-tailored written policy that is guided by the factors detailed below the nature and gravity of the offense, time passed since the offense, and the nature of the job held or sought. It also suggests that employers limit criminal history inquiries to records that would require exclusion from the position at issue. Employers should also keep in mind that when conducting a background check on applicants or employees, they must comply with the Fair Credit Reporting Act (FCRA)...