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The Catch-22 of Criminal-Background-Check Guidance

Some employers are simply refusing to follow the new EEOC guideline on criminal background checks for fear it will either put them out of business or create an unsafe working environment.

Monday, July 30, 2012
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Though employers have had a few months now to become familiar with the U.S. Equal Employment Occupation Commission's guidance on the use of criminal background checks, questions and confusion about how best to respond have only grown.

The guidance, issued April 25, is broad in its scope and specificity, essentially recommending that employers now only ask to see criminal records when such inquiries can be proven to be job-related. It also recommends that HR professionals, recruiters and hiring managers not automatically reject candidates with criminal backgrounds -- except for jobs in which particular convictions logically have no place -- but that they now conduct "individualized assessments" of those candidates to avoid liability under Title VII.

What this has created -- especially in this presidential election year, when a November Republican victory could change the tone and direction of many directives coming out of Washington -- "is a very tough Catch-22," says Gerald L. Maatman Jr., partner at Chicago-based employment law firm Seyfarth Shaw. "You either hire someone who could hurt your workforce, or you get in trouble for not complying with the EEOC mandate and EEOC enforcement."

The guidance has also required many of Maatman's employer and chief-human-resource-officer clients "to spend a lot of extra money" to train their recruiters and hiring managers to rethink criminal background checks and learn how to conduct these individual assessments -- "without even knowing the end result of all this" due to the upcoming election.

Election or no, "I think the jury's out on just how possible this [revamping of all hiring practices and training] really is," he says. "A lot of my clients are saying, 'I could comply if I had buckets of money to spend to administer this.' "

In some cases, employers are simply refusing to follow the guideline for fear it will either put them out of business -- considering this new cost of training -- or create an unsafe working environment, says William Tate, president of Chicago-based HR Plus, a screening-solutions provider.

"There are companies out there saying, 'I'm not going to do this. I want to keep my employees safe,' " Tate says. And, while he understands the sentiment, he doesn't think that's such a good move.

"Most companies may see this as an either-or, a Sophie's Choice (as the movie title suggests) between following the rules and making your company a safe place to work," he says, "but the real suggestion I make [to clients] is, 'How can we do both?' "

Tate says there is a way, without bringing down a company, to continue "doing diligent background checks to make sure you know who you're bringing into the workplace, yet, at the same time, doing the necessary steps as advised by the EEOC after a conviction is found."

It doesn't cost an arm and a leg to ensure you aren't violating Title VII's disparate treatment and disparate impact stipulations when hiring candidates, Tate says. It's also do-able to follow the EEOC's list of individual pieces of evidence employers should review when making their individualized determinations.

According to this blog post from Maatman, they include:

* The facts or circumstances surrounding the offense or conduct;

* The number of offenses for which the individual was convicted;

* Older age at the time of conviction, or release from prison;

* Evidence that the individual performed the same type of work, post-conviction with the same or a different employer, with no known incidents of criminal conduct;

* The length and consistency of employment history before and after the offense or conduct;

* Rehabilitation efforts, e.g., education/training;

* Employment or character references and any other information regarding fitness for the particular position; and

* Whether the individual is bonded under a federal, state, or local bonding program.

It's also wise, says Maatman, to digest and keep in mind the EEOC's "best practices" for employers to follow that are contained in its guidance:

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* Eliminate policies or practices that exclude people from employment based on any criminal record;

* Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination;

* Develop a narrowly tailored written policy and procedures for screening for criminal records;

* Identify essential job requirements and the actual circumstances under which the jobs are performed;

* Determine the specific offenses that may demonstrate unfitness for performing such jobs;

* Identify the criminal offenses based on all available evidence;

* Determine the duration of exclusions for criminal conduct based on all available evidence;

* Record the justification for the policy and procedures;

* Note and keep a record of consultations and research considered in crafting the policy and procedures;

* Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII;

* When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity; and

* Keep information about the criminal records of applicants and employees confidential (only use it for the purposes for which it was intended).

A Berkshire Associates white paper by Nicole Butts, titled Understanding When and How to Use Conviction Records in Employment Decisions, clearly states that "a covered employer's reliance on a criminal record to deny employment violates Title VII only when the reliance on that criminal record is part of a claim of employment discrimination based on race, color, religion, gender or national origin."

"The guidance," it says, "is not [intended] to eliminate or make illegal the use of criminal-background checks, but to illuminate when and how such records should be used and applied in employment decisions."

Indeed, employment attorneys and the EEOC itself are not recommending doing away with criminal background checks, but applying them to job candidates differently.

Just know, say Tate, Maatman and others whose clients are employers, that that new application comes with a price tag.

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