Keep policy well defined to comply with EEOC guidelines

The new Equal Employment Opportunity Commission guidelines on background checks for prospective employees was created to ensure nobody is being unfairly targeted or discriminated against due to their criminal past. Basically what the guidelines want to avoid is an employer using someone’s criminal conviction from many years ago as an excuse to not hire them for a job that is completely unrelated to the crime they committed.

To make sure your company is in compliance with the guidelines, avoid blanket refusals to only specific types of jobs (those who work with the finances of your company, for example). Other tips for business owners:

  • Define your policy as narrowly as possible, and don’t stray outside those parameters for any prospective employee.
  • Be specific about essential job requirements for each position, along with the circumstances under which work is done.
  • Set a length of time for which any criminal conduct will be disregarded by your employment screening reports. (For example, if the conviction was 10 years in the past.)
  • Include the justification for the policy and for each procedure. If you end up needing to justify your action regarding a prospective employee, you want your policy to be clearly written.
  • Document any counsel and/or research used in creating the policy and procedures. Let them know there were legal and industry experts behind your decisions.
  • Train managers, recruiters, and other decision makers on the policy and procedures.
  • Don’t ask about convictions on job applications. Save it for the background check.

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EEOC creates new guidelines for employers using criminal records in employment screening

Last month the Equal Employment Opportunity Commission (EEOC) voted to create new Guidance regarding employer use of criminal records under Title VII of the Civil Rights Act of 1964. Criminal background checks have become increasingly popular as a means for employers to, among other things, lessen the potentially tragic and expensive claims of failure to supervise or negligent hiring.

In the past the EEOC had at least partially disavowed criminal checks except in very limited industries because they were considered to be disproportionately negative for certain minorities.

The new EEOC guidance reiterates the four factors used to determine whether an employer’s hiring and other employment decisions and policies relating to criminal background checks violate the law:

  1. Convictions as opposed to arrests
  2. The nature and gravity of the offense or conduct
  3. Time that has passed since the offense
  4. The nature of the job held or sought.

It also provides specific examples of criminal background policies which the EEOC believes violate Title VII.

The EEOC also suggests employees who undergo criminal background checks should be told that they were denied the job because of a criminal conviction, and that there would have to be an opportunity for that applicant to demonstrate either that the screen was inaccurate or to state why they should not be denied the job. The employer would also have to review any additional information provided by the prospective employee regarding the conviction or their credentials.

There are many more details about the EEOC’s new guidance. We suggest every employer read the full guidance at


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Pepsi agrees to $3.13 million settlement for background check policy that violated Civil Rights Act

Pepsi Beverages has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed at the U.S. Equal Employment Opportunity Commission (EEOC) regarding its previous pre-employment screening policy.

According to the press release put out by the EEOC, the commission’s investigation revealed that “more than 300 African-Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment. Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any Buy Cialis offense.”

The press release continues: “Pepsi’s former policy also denied employment to applicants from employment who had been arrested or convicted of certain minor offenses. The use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.”

Pepsi has since adopted a new criminal background check policy. The settlement will mostly be divided among black applicants for positions at Pepsi.

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Majority of retailers surveyed conduct background checks

A recent survey by the National Retail Federation has found that nearly all of the country’s leading department stores, grocery stores, large drug stores, discount stores and restaurants surveyed — a whopping 96.6 percent — use some form of background screening during the application, hiring and employment process.

This includes application forms – and prevent businesses from asking job applicants about their criminal history during the application and pre-employment process. Twenty-eight cities and counties across the country have “banned the box,” no longer asking potential employees whether they have any felony convictions.

The survey also found retailers conduct post-employment screening at a high rate on store associates, store management, and distribution center employees. The most common type of background check is the criminal history check, followed by the Social Security Number trace, and a check of the applicant’s sex offender status.

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Recent studies further debate about background checks leading to discrimination

For awhile now there has been some debate about whether employment screening is discriminatory against some minorities. Attorneys with the federal Equal Employment Opportunity Commission have charged that blacks and Latinos are having a harder time finding jobs in the age of pre-employment screening because these minority groups have higher rates of arrests and convictions than whites. Some advocacy groups disagree, including Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research that is a leading voice of the African-American community. But the issue has resulted in much debate and several lawsuits citing workplace discrimination.

Now a recent letter from three members of the U.S. Commission on Civil Rights stands to open the debate further. The letter claims recent studies suggest the use of criminal background checks does not automatically lead to lower hiring rates of minorities. The letter cited a 2006 research paper — “Perceived Criminality, Criminal Background Checks and the Racial Hiring Practices of Employers” by Harry Holzer, Steven Raphael, and Michael Stoll – that analyzed the effect of criminal background checks on the hiring of blacks and found that employers using criminal background checks were more likely to hire black workers, especially men, than those who didn’t have that information. Another study conducted by Stoll found that, in the absence of performing criminal background checks, employers were likely to discriminate using age or race as indicators of past activities.

These studies will no doubt further the debate about this issue. Stay tuned for further developments!

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SHRM Tells EEOC to Reconsider Their Views on Background Checks during Hiring

The U.S. Equal Employment Opportunity Commission (EEOC) has striven to ensure that all workers be given a fair shot at obtaining jobs.  However, the organization’s vigilance has often come at odds with employers’ abilities to use background checks, specifically credit checks, as a measure of weeding out applicants with questionable records.

Consequently, the Society for Human Resource Management (SHRM) has urged the EEOC to reconsider its position in regards to credit checks, citing many types of workers who should ideally have excellent credit records in order to obtain certain positions.  (As an FYI, we’d suggest anyone with access to his or her employer’s financial records or cash be screened via a credit check background check.)

Without a doubt, the EEOC is simply trying to make certain that no potential employees are unfairly eliminated from a job applicant pool.  But SHRM makes a strong argument for the employer’s side of the coin, as performing background checks (including those regarding credit reports) offers protection for workers, companies, vendors, volunteers and customers.