New guidelines could alter employee background checks
EEOC policy aims to level playing field for job applicants with a criminal history.

By SAM HANANEL| The Associated Press

Apr 28 2012
Washington • Is an arrest in a barroom brawl 20 years ago a job disqualifier? Not necessarily, the government says in new guidelines on how employers can avoid running afoul of laws prohibiting job discrimination.


The Equal Employment Opportunity Commission (EEOC) said that although employers may legally consider criminal records in hiring decisions, a policy that excludes all applicants with a conviction could violate employment discrimination laws because it could have a disparate impact on racial and ethnic minorities, who have higher arrest and conviction rates than whites.

"The ability of African-Americans and Latinos to gain employment after prison is one of the paramount civil justice issues of our time," said Stuart Ishimaru, one of three Democrats on the five-member commission.

But some employers say the new policy — approved in a 4-1 vote — could make it more cumbersome and expensive to conduct individualized assessments. Companies see the background checks as a way to keep workers and customers safe, weed out unsavory workers and prevent negligent hiring claims.

The new standard urges employers to give applicants a chance to explain a report of past criminal misconduct before they are rejected outright. An applicant might say the report is inaccurate or point out that the conviction was expunged. It may be completely unrelated to the job, or an ex-con may show he’s been fully rehabilitated.

The EEOC also recommends that employers stop asking about past convictions on job applications. And it says an arrest without a conviction is not generally an acceptable reason to deny employment.
While the guidance does not have the force of regulations, it sets a higher bar in explaining how businesses can avoid violating the law.
"It’s going to be much more burdensome," said Pamela Devata, a Chicago employment lawyer who has represented companies trying to comply with EEOC’s requirements. "Logistically, it’s going to be very difficult for employers who have a large amount of attrition to have an individual discussion with each and every applicant."

The guidelines are the first attempt since 1990 to update the commission’s policy on criminal background checks. Current standards already require employers to consider the age and seriousness of an applicant’s conviction and its relationship to specific job openings. And it is generally illegal for employers to have a blanket ban based on criminal history.

But the frequency of background checks has exploded over the past decade with the growth of online databases and dozens of search companies offering low-cost records searches.
New guidelines could alter employee background checks | The Salt Lake Tribune