Should Construction Owners Continue To Use Criminal Background Checks? Part 1

My friend and partner, Bert Brannen is going to provide a three-part discussion on criminal background checks, including practical compliance tips.
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Earlier this year, the EEOC issued Enforcement Guidance on the “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended (Title VII).” Construction owners need to review this Guidance and to revise their current policies and procedures on criminal background checks.


According to one survey, 90% of employers perform criminal background checks on job applicants. The risk management reasons asserted for using criminal background information are to prevent theft or fraud, workplace violence and potential liability for negligent hiring. Construction employers may also be required to perform background checks to comply with owner or general contractor requirements or state and local laws or regulations.

Title VII prohibits employment discrimination based on race, color, religion, sex or national origin. Having a criminal record is not specifically listed as a protected basis. Therefore, whether an employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of discrimination based on one of the protected categories. Title VII liability can arise from one of two different theories: “disparate treatment” or “disparate impact.”

Disparate treatment occurs when an employer treats a person in a protected category differently than someone who is not in that same category. On the other hand, disparate impact liability arises when an employer maintains an apparently neutral policy or practice that has the effect of disproportionately screening out a group protected by Title VII and the employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity. To maintain a successful program of conducting criminal background checks, an employer must avoid policies or practices that might be considered a violation of Title VII under either of these two legal theories.

Over the past 25 years, courts and the EEOC have provided guidelines on employer use of criminal background employment decisions under Title VII. The EEOC’s recent Guidance restates the Commission’s position and supersedes its previous policy statements on this issue.

Compliance Tips.

Bert will outline seven practical tips for employers based on the EEOC’s Guidance. Here are the first two….

1. Know and Comply With Applicable Laws.

As stated previously, employers can violate Title VII in two different ways by not doing criminal background checks properly. A growing number of state laws also impose restrictions or prohibitions on the use of criminal background checks. The most aggressive of these laws are called “ban the box” laws and have been adopted in California, Connecticut, Hawaii, Massachusetts and New Mexico and in cities such as Chicago, Philadelphia and Seattle.

On the other hand, some laws contain stringent requirements for conducting thorough background checks. For example, existence of a criminal record may result in the denial of a federal security clearance, which is a prerequisite for a variety of positions with the federal government and federal contractors. Similarly, port workers can be denied Transportation Workers Identification credentials based on their conviction record. These are a few examples of laws that may actually prohibit an employer from employing certain individuals with criminal backgrounds. Obviously, given the fact that state and federal laws can come into play in a variety of ways, construction employers need to be aware of which laws apply to their businesses or specific projects.

2. Do Not Use A Blanket “Any Conviction” Standard.

The EEOC’s position is that a blanket policy denying employment to all applicants with criminal conviction records violates Title VII. That said, the EEOC recommends that employers utilize a targeted screening process that takes into consideration the position for which the applicant has applied; the nature and gravity of the criminal offense or conduct; and the time that has passed since the offense or conduct and/or completion of the sentence.


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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