On April 25, 2012, by a four to one vote, the Equal Employment Opportunity Commission, (EEOC) created a new guidance relating to criminal background checks. Criminal background checks have become increasingly popular over the last several years as employers work to streamline their workforces, minimize staff turn-over and mitigate the potentially complex and expensive claims of failure to supervise or negligent hiring.
In the past the EEOC had at least partially disavowed criminal checks as a whole except in very limited industries because it was felt that they were disproportionately negative for certain minorities. However the current needs of the workplace are significantly different than the EEOC view point which was developed in the 1960s.
The EEOC guidance, which is on-line, reiterates the standard EEOC three party test for review:
• What was the seriousness of the offense
• How close in time was the offense
• How does it affect the jobs applied for by the applicant
The EEOC strongly suggests a fourth prong, an individualized assessment. Under this suggestion employees who are reviewed by criminal background checks would have to be told that they were screened out because of a criminal conviction, there would have to be an opportunity for the individual to demonstrate either that the screen was inaccurate or why the exclusion should not apply to them. The employer would also have to review any additional information provided by the prospective employee. A structure of this type may create significant additional liabilities and problems for employers who may now learn more information than they ever wanted to know about their employee’s backgrounds, their drinking habits as juveniles or why they shoplifted that quart of ice cream and exactly how they got it stuck in their pants.
The EEOC remains skeptical of the value of initial inquiry on job applications - especially if a conviction is an automatic screen out. The EEOC also states that arrests are not disqualifying although some underlying behaviors resulting in an arrest may be. There is an exception for complying with federal rules for security checks, but no exception for complying with state laws. In Iowa state background check laws tend to be focused on job issues (a daycare provider should not have a recent child assault conviction).
Given the conflicting issues that are still inherent in this area, employers, except those who are required by federal to conduct full criminal record checks should evaluate any background check processes they are using.
Jo Ellen Whitney
Davis Brown Law Firm