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Questioning Criminal-Background Checks

The EEOC is considering issuing a guidance that could limit an employer being able to ask about criminal backgrounds on employment applications. While a multitude of business groups spoke against such a limit, observers believe the agency is leaning toward restricting use of such investigations.

Monday, August 29, 2011
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Employers are bracing for strengthened guidelines from the U.S. Equal Employment Opportunity Commission that will govern the use of criminal-background checks during the hiring process.

While experts agree a fresh look might be warranted, some also believe it would be a mistake to implement sweeping changes that fail to take into account the hiring challenges facing employers today.

The EEOC held hearings in Washington last month on the role arrest and conviction records should and shouldn't play in the hiring process. The meeting was one in a series the EEOC has been holding on hiring-related topics.

Stephen Saltzburg, a professor at George Washington Law School in Washington, told the commission the "collateral consequences of criminal records for employment opportunities represent one of the more challenging issues facing our justice system and our nation."

Because concerns over making a wrong hiring decisions are so great, he said, companies frequently deploy a broad response that results in "unjustified and discriminatory barriers to persons whose criminal records are unrelated to the employment at issue and whose records maintained by government databases are inaccurate or incomplete."

Employer groups, nonetheless, caution the EEOC to tread carefully when crafting new guidelines.

Leading up to the hearing, a group of 60 associations, ranging from the Air Conditioning Contractors of America to the Mortgage Bankers Association, sent the EEOC a joint letter that said "attempts to ease the unemployment situation or re-entry desires should not come at the expense of keeping people and businesses safe from physical or financial harm."

In a separate letter to the EEOC, David French, senior vice president for government relations at the Washington-based National Retail Federation, stressed the need for employers to be able to ask about criminal backgrounds on employment applications.

"The retail industry wants to keep our workplaces safe," he said. "Removing a first line of defense, specifically the criminal-background-history question on an employment application, leaves retailers, shoppers and the entire business community at a disadvantage."

Others worry new EEOC guidelines could place new and unnecessary demands on businesses.

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"I'd like them to take great care in creating any new guidance that's going to create additional burdens for employers," says Barry Hartstein, a shareholder at Littler Mendelson in Chicago who spoke before the EEOC as well.

Because there already are so many competing laws out there, he says, "what I don't want to see happen is for the EEOC to make things even more problematic and costly for employers to comply." He says the agency should take a more "nuanced" and more "localized" approach to issue.

Hartstein predicts new guidance could come as soon as the end of the year.

By further restricting the ability of employers to conduct criminal-background checks, some say, the EEOC would be creating a Catch-22 for employers.

"Companies have the responsibility to create a safe working environment, yet their hands would be tied because one of the more important tools for doing so would be taken away from them," says Stephanie Hughes Kernick, executive director of the National Association of Professional Background Screeners in Morrisville, N.C.

Kernick says the individuals invited to present at the EEOC hearing suggests the agency is leaning in the direction of further limiting criminal background checks.

Most of the "people at the hearing were clearly in the camp of setting up additional barriers [for employers]," she says.

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