EEOC Issues New Guidelines On Background Checks.
How targeted criminal screens may satisfy business necessity
An employer may satisfy its new Title VII obligations by using an internal policy if it is “narrowly tailored” so that it has as a “demonstrably tight nexus to the position in question.” This is typically considered a “business neccessity” policy. The guidance refers to “targeted screens” that are based on the “Green factors” such as: 1) the nature of the crime, 2) the time elapsed, and 3) the nature of the job.
The guidance prefers that a targeted screen be accompanied by notice to the individual under scrutiny and an individualized assessment of the individual and the crime and the position in question. An individualized assessment would allow the applicant or employee to explain the circumstances of the conviction. Possible topics of consideration in an individualized assessment could include:
» The facts and circumstances surrounding the offense or conduct;
» Evidence that the individual performed the same type of work, post-conviction, with the same or different employer, with no known incidents of criminal conduct; and
» Employment or character references and other information regarding the individual’s fitness for the particular position.
Arrest record may not be enough to deny employment
Under the guidance, individuals are “presumed innocent unless proven guilty.” The guidance specifically states that an “arrest record standing alone may not be used to deny an employment opportunity.” However, an employer is allowed to make an employment decision based on the conduct underlying the arrest if the individual would be unfit for the position because of the conduct.
Federal prohibitions or restrictions still apply
The guidance notes federal laws and regulations prohibit the employment of persons with records of certain crimes in particular positions, e.g., child care workers in federal agencies and bank workers. It finds that Title VII does not preempt these federally imposed restrictions. However, state and local restrictions are not recognized,and an employer must demonstrate that its policy is job-related and consistent with business necessity based on the Green factors.
As a “best practice,” the guidance encourages employers not to ask applicants about their criminal records.
Common Sense Counsel
Taking the following steps will help keep employers off the EEOC radar: 1) adopt a written criminal background check policy in line with the EEOC guidance, 2) revise your employment application on criminal convictions, 3) revise your job descriptions so that demonstrated honesty and integrity are essential job functions, and 4) train your hiring managers on how to conduct an interactive individualized assessment.
Source/Credit: Tommy Eden who is an attorney with Capell & Howard, P.C., a member of the ABA Section of Labor and Employment Law, and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-501-1540 or www.AlabamaAtWork.com. Alabama Immigration updates at www.ImmigrationAlabamaLaw.com