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Digging Deeper into Criminal Checks

Tuesday, July 17, 2012
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Due to employers' widespread use of criminal background checks and concerns about their unfair effect on protected classes, the U.S. Equal Employment Opportunity Commission recently issued a much-heralded guidance on considering criminal history in employment decisions.

Although it doesn't impose any new rules, employers should pay attention to its nuances to ensure these decisions fit new stipulations that such checks be "job-related" and "consistent with business necessity."

As it states, an employer's policy will "consistently meet" the job-related and business-necessity standard in two instances. First, the employer may validate its criminal-conduct screen. This process is tedious.

The other, more practical option is that the employer develops a "targeted screen" and conducts an "individualized assessment." The EEOC continues to find three factors instructive when creating such a screen: (1) the nature and gravity of the crime, (2) the time elapsed since commission of the crime and (3) the nature of the job. The new guidance, however, provides more insight into how employers should assess each factor to create a narrowly tailored screening policy.

When analyzing the nature and gravity of the offense, employers must now examine the legal elements of, and the harm caused by, the crime. For example, theft results in property loss, but a conviction for felony theft may involve deception, threat or intimidation.

The EEOC has also clarified its long-standing position that permanent, extensive or unlimited criminal-conduct exclusions, even for the most serious crimes, are generally not permissible. If a policy has such exclusions, the guidance advises employers to consult recidivism studies to confirm whether an individual convicted of such a crime, but who has been crime-free since, actually poses a risk after a certain period of time.

Employers must identify the particular job(s) subject to the screening policy by considering the job title, along with the duties and essential functions of the job. Employers should also focus on the circumstances under which the job is performed, by considering the level of supervision, oversight and interaction with others.

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The EEOC indicates that, in certain circumstances, an employer may be able to justify a targeted-criminal-record screen based only on the factors discussed above. For example, daycare centers would not need to ask someone to explain a conviction of violence against a child. Most situations, however, are not this clear-cut and may require individualized assessments.

An individualized assessment generally consists of three steps. First, the employer informs the individual of a possible exclusion due to past criminal conduct. The individual then has an opportunity to provide information opposing the exclusion. Ultimately, the employer decides whether the individual's circumstances warrant an exception to the policy.

The EEOC characterizes an individual assessment as a best practice, but also indicates that it will be expected in some instances. Given the uncertainty about when that will be, employers should perform them consistently. Face it, navigating the world of criminal background checks just became another HR task.

Paul Salvatore is the co-chair of New York-based Proskauer's global labor and employment law department. He can be emailed at psalvatore@proskauer.com.

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