New EEOC enforcement guidance: A to-do list for revamping the handling of arrests, convictions, and criminal background checks

This spring, 2012, the EEOC issued an updated Enforcement Guidance (EG) titled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.  The new EG focuses on preventing employment discrimination based on race and national origin, and particularly, the disparate impact on African Americans and Hispanics from neutral policies and practices in employment regarding arrest and conviction records. As good as that sounds, in order to comply, employers have extra work ahead of them if they want to continue using criminal background information for employment decisions, which some believe is necessary to reduce the risk of theft, fraud, workplace violence, and negligent hiring claims. Out with the Old, In with the New Although the EEOC previously issued guidance on this topic in 1987 and 1990, and covered it in the Compliance Manual for its investigators, the new EG supercedes all of that.  In addition, the new EG reflects the EEOC's hostility to the use of criminal records for screening and hiring applicants, and deciding whether to promote and retain employees. The new EG is available on the EEOC's website.  The EEOC also has provided a shorter, but still helpful, Question and Answer page. Politics and Process For an insightful look at the process that resulted in the new EG, and the political winds that led to it, see a post from our friends at the Ohio Employer's Law Blog. To-Do List Because of the volume of information flowing from the new EG, we have decided to change our normal practice of explaining a new legal requirement or guidance, with employer tips and to-do's at the end of the article.  Instead, this time, we are providing the to-do's up front.  We'll answer the "why's" and "how's" in two subsequent posts (#2) and (#3). If you are an employer with 15 or more employees (therefore, covered by Title VII), you should add more items to the growing to-do list of your human resource professional.  Because the Iowa Civil Rights Act is patterned after Title VII, and Iowa generally follows the EECO's lead, employers with four or more employees should pay attention, too.  (Hey, don't shoot the messenger.)  Following is our list of recommendations for the to-do list.  Again, we'll explain in more detail where this list came from, and what it means, in the next two posts.

• Job Applications – Remove any questions about criminal convictions from the job application form both paper and electronic versions.  While this is not required by the EEOC, it comes with a strong recommendation (a 'best practice'), with which we concur after slogging through the new EG.  Removing the questions will give you some additional arguments and defenses in the event of a discrimination claim over the use of criminal records, and we defense lawyers want all the arguments and defenses we can get.

• New Applicant Disclosure Form – Use a separate form to obtain criminal conviction information from applicants.  While this is not required by the EEOC we recommend it so you can still get the information that was stripped from your job applications, but be mindful of who sees it and how it is used.  As an aside, remember that the Fair Credit Reporting Act has specific requirements for yet other permission forms when a background check is conducted by a "consumer reporting agency".

• Policy/Practice

  • Eliminate any policy or practice that automatically excludes a person from all jobs due to any arrest or conviction.  This is a requirement, unless you want the EEOC to issue a probable cause determination with the first complaint it gets about your policy/practice.

  • Continue to perform criminal background checks on applicants and employees, but rethink when you get that information, what information you get, and what you do with it.  The EG requires developing a 'Targeted Screen,' supported by data, which is narrowly tailored for a tight link between specific criminal records and specific jobs.  Generalized concerns will not cut the mustard for this; you will need cold, hard facts and statistical data.  Document your rationale for your policy/practice.  More details on this will be provided in future posts. Note, that if you are a rare employer who prefers and is familiar with validation studies under the EEOC's Uniform Guidelines for Employee Selection, then you can substitute validation of your policy/practice for the Targeted Screen.  Either way, the new EG appears to require either a data-supported Targeted Screen or a Validation Study.

  • If you develop a Targeted Screen, add an 'Individualized Assessment' process to go with it.  An Individualized Assessment gives the applicant/employee who would otherwise be excluded from employment based on the Targeted Screen a chance to provide additional information to try to change your mind about sending them packing due to an arrest or conviction.  More details on this will be provided in future posts.  This is not required, but it is strongly recommended and it was heavily discussed in the EG.

  • Note: The Targeted Screen and Individualized Assessment are not necessarily policies to be included in your employee handbook.  That's because they are primarily applicable to applicants (who don't get an employee handbook), and they primarily concern internal procedures for HR and supervisors.  It is sufficient to have these policies/practices documented for management/HR use only, and not published for general consumption by all employees.

• Training – Train hiring officials and affected decision makers in your new policies/practices.  This is recommended by the EEOC as a best practice.

• Recordkeeping – Keep criminal record information of applicants and employees confidential.  In other words, treat it like medical information.  This is recommended by the EEOC as a best practice.

For more information on the proper use of arrest and conviction records and criminal background checks of applicants or employees, or for help with the above to-do list, see our future posts on the new EG, contact attorney Jill Jensen-Welch (at 515.246.4536 / jjensen@dickinsonlaw.com), or contact another member of Dickinson's Employment & Labor Law Group at employmentlaw@dickinsonlaw.com.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.