Should An Employer Use Criminal Record Checks? Part 2

The post below is Part 2 of my law partner, Bert Brannen’s tips to safely using criminal record checks in the context of increased regulatory scrutiny.

3. Revise The Inquiries On Your Employment Application. The EEOC Guidance strongly discourages employers from asking about criminal convictions on job applications. However, most employers are still going to find it beneficial to inquire about criminal convictions. If an employer chooses to make inquiries about conviction records, it should include a very specific disclaimer along the lines of: “Answering ‘yes’ to any of the following questions does not constitute an automatic bar to employment. Among other things, we will consider the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job you are seeking. If you answer ‘yes’ to any of the following questions, be sure to fill in the explanation field.”

4. Do Not Consider Arrest Records. Simply put, employers may not exclude an applicant based solely on an arrest record. An arrest, unlike a conviction, does not establish that the alleged conduct actually occurred. Moreover, the EEOC’s position is that African Americans and Hispanics are arrested at a rate that is two to three times their proportion to the general population. Thus, using arrest records would have a disparate impact on those two categories protected by Title VII.

5. Assess Each Person’s Individual Situation. The EEOC suggests in the Guidance that employers be required to conduct an “individualized assessment” before disqualifying any applicant based on criminal history. The EEOC suggests that employers consider individualized evidence including, but not limited to:

• the facts or circumstances surrounding the offense or conduct;
• the 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, with the same or different employer, with no known incidents of criminal conduct;
• the length and consistency of employment history before and after the offense or conduct; rehabilitation efforts, e.g., education/training; employment or character references and any other information regarding fitness for the particular positions, and;
• whether the individual is bonded under federal, state or local bonding programs.
If an individual does not respond to the employer’s attempt to gather additional information about the background, the employer may make its employment decision without that information.

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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