In case you haven’t heard, the EEOC on Wednesday held a public meeting to discuss its issuance of new guidance stated to further the Commission’s efforts to “eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII…”
The updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions has caused quite a stir among background screening companies and employers who rely on criminal background checks. Chicken Little would have nothing on some of these people!
Before this goes too far, let us try to boil down the 55 page guidance document into 3 words for you:
Little. Has. Changed
Don’t take us too literally but the truth is, very little has really changed. The LAW hasn’t changed. The EEOC is not Congress; they can’t change the law. It’s the same as it’s been since 1991. Rather, their strategy is as it’s always been: Sue and let others figure it out. What the EEOC is doing is changing their strategy to discern whether or not they’ll sue you. They are changing the lens through which they’ll look at your practices.
At issue, the big difference is the individual assessment section. The guidance details that when it comes to using criminal records in employment screening, an employer must individually consider:
- Facts or circumstances surrounding the offense or conduct
- Number of offenses for which the individual was convicted
- Age at the time of conviction, or release from prison
- Evidence that the individual performed the same type of work, post conviction, without any known incidents of criminal conduct
- Length and consistency of employment before and after offense
- rehabilitation efforts; and whether individual is bonded under a federal, state, or local bonding program
So, no – we’re not teetering on the brink of extinction but you could have a serious price to pay for sloppy employment practices.
If you’re doing a good job of documenting those things today you’re probably in pretty good shape. If not, well we’ve made our point.