Criminal Background Checks: New Guidelines
by James L. Palmer, partner
Scholz, Loos, Palmer, Siebers & Duesterhaus
On April 25, 2012 the EEOC in a 4 to 1 vote promulgated new Title VII guidelines for criminal background checks.
What does this mean? Why and to what purpose?
The new rules state: Because criminal background checks could have a greater (disparate) negative impact upon “protected classes”, specifically “African Americans and Hispanics”, such checks will only be lawful if they relate to a specifically identified job function and are consistent with a “business necessity”.
The rationale for these rules is that a criminal background check can be used directly or indirectly to screen out members of protected classes. EEOC’s position is that such checks used to screen potential or current employees violates Title VII, unless a criminal conviction relates to the field of work in which the candidate is seeking employment or a current employee is seeking a promotion.
For example, a person applying to be a police officer who has been convicted of perjury cannot be a police officer because his/her credibility would be attacked every time they took the stand in a criminal case. Police officers must be able to testify in criminal cases regarding their arrest. Their credibility is crucial to securing a conviction.
What about the applicant at the local fast food restaurant who is convicted of shoplifting? Should they be excluded from serving fast food because of the theft conviction? Maybe. It depends on the nature of the job.
All companies that want to use criminal background checks must be mindful of the new guidelines. They should consider the following points:
(1) What is the purpose of the criminal background check?
(2) What is the criteria for the check?
(3) Does the background check policy help the company hire people who can best do the job – therefore the company should identify the essential functions of the job?
(4) Is there a legitimate business purpose or necessity behind the background check policy, if so what is it?
(5) How broad is the policy: e.g. felony only, crimes of violence, crimes involving honesty?
(6) Does the policy place any time limitations on the conviction – such as, within the last five, seven or ten years?
(7) Does the policy consider circumstances, such as, the individual’s age at the time of the conviction or release from incarceration – juvenile convictions are treated differently under most State and Federal laws?
(8) Do the guidelines apply to policies relating to both termination and/or discipline of existing employees?
Policies can’t be used to screen existing employees for job promotions and/or transfers, unless those policies meet the new EEOC guidelines. Also, the guidelines make it clear that you should not use convictions of a current employee to terminate that employee, unless you have a policy in place that complies with the new guidelines.
Okay, you say “I’ll dump my policies and have none in this area.” Not so fast. What is your business? Is honesty an important commodity? Are you a business where violence in the work place is an issue? Do you want to get sued for negligent hiring – put a dishonest person in contact with your customers or clients? Yes, a real catch 22 situation.
In looking at your policies, use your common sense. Look at policies and ask yourself, why do you have the policy? Can it be made leaner? Can it be made more fair and clearer? Always give the potential employee and/or current employee an opportunity to explain or dispute any adverse findings – i.e. rectify any mistakes. Always, always, always be ready to rectify any mistakes.