While criminal background checks remain an important part of the employment screening process, the Equal Employment Opportunity Commission (EEOC) has updated its guidance on how employers should use criminal records in employment decisions.
As a result, employers should review their current background screening programs to ensure alignment with the new guidelines. Employers that fail to update their background screening programs could face potential discrimination claims for the misuse of criminal history reports.
Here are nine key areas to review in your background screening program to help reduce your company’s risks as they relate to the updated EEOC guidance.
1. Verify that your background screening policy uses a “targeted screen.”
According to the EEOC guidance, a hiring policy cannot disqualify every individual with a criminal history from holding a position within a company. As a best practice, employers should develop hiring criteria specific to the requirements of the position. The EEOC has recommended that employers consider the following when assessing background screening criteria:
- The gravity of the offense (harm caused, elements of the crime, and classification)
- The amount of time that has passed since the offense or conduct and/or completion of the sentence
- The nature of the job in question
2. Develop an individualized assessment.
An individualized assessment allows an individual who may be ineligible for a position because of his or her criminal history to have the opportunity to explain the circumstances surrounding the conviction and any mitigating information.. An assessment may examine individualized evidence such as:
- The details surrounding the offense or conduct
- The number of offenses that received a conviction
- An older age at the time of a conviction or release from prison
- Evidence of work experience that is free of criminal conduct after a conviction
- Employment history before and after the offense or conduct
- Rehabilitation in light of an arrest or conviction
- References regarding an individual’s employment or character as they pertain to his or her fitness for a position
- Bonding under a state, federal or local bonding program
3. Make sure a strategic background screening program is in place.
A structured background screening program helps reduce risks of discrimination claims. Before deciding that a conviction disqualifies someone from holding a position in the company, the employer should first verify if the individual meets the educational, licensing, insurance or experience requirement.
Verify that all the information on the job application is true. There are intelligent ways to approach the background screening process so an employer does not disqualify people strictly on criminal history.
4. Verify the creation of well-developed background screening program materials.
Such materials demonstrate a company’s values, commitment to honoring the Title VII rights of all individuals and shows thoughtfulness.
5. Make sure related training and educational programs are in place.
Hiring officials, manager and decision-makers within a company should be familiar with Title VII and the prohibition against discrimination.
6. Examine your record keeping efforts.
By keeping good records about research considered, consultations and interactions with current or potential employees, you are better able to justify your compliance with the EEOC guidance. Good record keeping can also help show that your company does not apply a blanket prohibition against hiring an applicant with a criminal record.
7. Establish a policy regarding the confidentiality of criminal records.
When an employer uses criminal records for their intended purposes, it helps promote an individual’s right to privacy. Background screening records should be maintained in a confidential location with access limited to those within the employer that need to know the information.
8. Make sure your hiring program is fair and in compliance with applicable laws.
A fair and compliant background screening program includes compliance with Title VII and other regulations that may be applicable such as the Fair Credit Reporting Act. We recommend that you have your background screening program reviewed by your legal counsel to determine compliance with applicable laws.
9. Consider if your company’s assessments should be protected by privilege.
After reviewing the needs of your company, you may find that the use of legal counsel is advantageous in regards to ensuring the confidentiality of conversations and assessments.
While the use of criminal background checks provides many benefits such as protecting the workplace and making better hiring decisions, as well as meeting state laws that require criminal background checks for certain positions, employers should ensure that they are meeting their obligations under the EEOC Enforcement Guidance, or they could be exposed to potential discrimination claims.
Recorded Webinar: Understanding the Nuances of the Updated EEOC Enforcement Guidance
Littler Mendelson, the premier U.S. employment law firm, shares insights on the updated Enforcement Guidance.
Insights that will help you evaluate potential changes to your background screening policies and procedures.