(A Little) More to Digest on Criminal Background Checks

Hinshaw & Culbertson LLP

Last month, we discussed the importance of maintaining employment files, including records on the use of criminal background information in the employment process. We suggested steps to ensure that your use of such information is based on a business necessity that will pass agency muster. We'd like to supplement those suggestions based on a recent presentation by EEOC Commissioner Constance Barker. 

Commissioner Barker recommends the following:

  1. Retain relevant job records on each position for which a background check and/or criminal records screen is used. This helps justify the use of the screen for that position. An example is a job description that fully and accurately describes the duties and responsibilities of the job that makes clear why a background check is needed on the candidates who may eventually perform those duties.
  2. Retain assessment records of all candidates screened for a position when the employer relied on criminal background information in the employment process. This likely means keeping applications, resumes, the background check and criminal records information obtained on successful and unsuccessful candidates.
  3. Consider interviewing employees who are screened out by their criminal background and allow them to explain the circumstances that lead to their conviction. Please note that this is a suggestion from the EEOC, not a requirement. Some employers are under competing state laws that require disqualification of a candidate due to certain convictions. Healthcare and education employers know this full well. While compliance with state law is not an absolute defense to an EEOC inquiry about the use of criminal background data, as a matter of enforcement policy, the agency is not typically going to pursue the employer who bases its use of the screen on adherence to state law. 

Commissioner Baker notes that the more employers rely on criminal background checks, the more the EEOC will be interested in investigating them. Put differently, plain vanilla "failure to hire" charges may no longer plain or vanilla--behind those charges now lurks an agency not so much interested in the employer's failure to hire one John Doe, but instead hungry for the broad disparate impact claim simmering away in the form of a general background check procedure just waiting for the EEOC to sink its teeth into it.

Don't let the EEOC bite! Review your screening processes and tailor any criminal background policy as narrowly as possible. As we recommended before, once a proper policy is in place, DOCUMENT, DOCUMENT, AND DOCUMENT some more why you are using criminal background information as part of your job screening process. Thereafter, retain those records in hard-copy or secure electronic form for at least a year in the event you face a very hungry EEOC.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Hinshaw & Culbertson LLP

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