New EEOC Rules on Criminal Background Screening for Job ...

Criminal background checks can make the workplace safer and prevent lawsuits against the employer for negligently hiring or supervising an employee with a criminal history of violence, abuse, fraud, theft, or drug / alcohol abuse if that employee later harms someone else while on the job. However, new EEOC guidelines have placed stricter limits on when and how employers can use these criminal background checks to screen out unsuitable job applicants.????

The EEOC ? Equal Employment Opportunity Commission ? conducts investigations and brings lawsuits to enforce federal laws that forbid employment discrimination based on race or national origin. The EEOC has issued new guidelines that specifically state that the EEOC considers employers? use of criminal background checks to screen applicants to have an adverse impact on black and Latino applicants, and therefore to be potentially discriminatory. ?The new EEOC guidelines provide that employers who conduct criminal background screenings can be required to prove that the screenings are both 1) specifically job-related and 2) consistent with business necessity. The EEOC reaffirms its previous guidelines that the screening decision should take into account:

1. The seriousness of the offense or conduct;
2. The time that has passed since the offense; and
3. How the offense relates to the job position.

New this year, the EEOC has added a guideline requiring that the employer also conduct an ?individualized assessment? when doing a criminal background screening. ?This requires the employer to tell an applicant when he or she is being rejected because of a criminal conviction, and to give the applicant an opportunity to show the screening was inaccurate, or to explain facts showing the conviction should not bar employment, or to provide information about rehabilitation, a successful employment history before or after the offense, or any other information useful to prove the applicant?s suitability for employment despite the conviction.?

Alarmingly, the guidelines say that an employer cannot rely on state or local legal requirements to defend against a claim that the employment screenings violate federal civil rights law by having a disproportionately large impact in excluding minority applicants.? This potential conflict makes it crucial for the employer to have a written job screening policy and record-keeping system, preferably vetted by an experienced business lawyer, to ensure the employer is satisfying both state and local requirements for criminal background checks (for example, for child care providers) and the EEOC guidelines.

California law has added its own elaborate restrictions on criminal background screenings, which must be followed along with the EEOC guidelines.? A California ?employer cannot generally ask for or use information concerning:

• Convictions more than seven years old;
• Convictions that were pardoned, or where the records were expunged and sealed;
• Arrests without conviction, except where the case is pending, or except for certain arrest records where the employment is in a health care facility and the employee would have access to patients or medications;
• Misdemeanor convictions where probation was successfully completed or discharged, and the case was judicially dismissed;
• Convictions more than two years ago for possession or use of small amounts of marijuana, as defined by the California Health and Safety laws;
• Participation in diversion programs to avoid prosecution or conviction; or
• Listing on a sex offender registry, except to protect vulnerable individuals.

Both thefederal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRA) place strict requirements on how and when applicants must be notified that their criminal background information is being sought, and further require the checks to be both accurate and confidential.

Call San Diego Law Firm for Skilled Help with Employee Background Screenings

San Diego Law Firm?s experienced business lawyers can help your business develop screening policies and job application forms for all of your employee positions.? We can assist you to create a record-keeping system to comply with all the requirements of California and federal laws forbidding discrimination and requiring notice, privacy, and record-keeping.? Where needed or useful, we can help you obtain or develop evidence supporting the need to use criminal background screenings for specific positions.

We?offer fixed fees for all of our business services once we know what your situation requires.? Please call us at (619) 794-0243 to make an appointment.? We look forward to helping you.

This entry was posted on Wednesday, May 30th, 2012 at 4:56 pm and is filed under Employment, Labor Law, Running a Business.

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