A few practical ruminations….

Many of us remain a bit surprised that even the EEOC has so many problems with employers refusing to hire applicants with criminal records. certainly there are problems, but do the inquiries really warrant class action-type focus?

Regardless of our opinions, the EEOC is pursuing expensive systemic investigations about such employer decisions . . . and it usually starts with a single individual’s EEOC charge. To oversimplify, the EEOC determines that the requirement has an adverse impact against a group, and then challenges the necessity of the standard.

Here are a few “practical” observations from our Columbia attorney, Matt Korn, and me.

The most common problems we have encountered with criminal background screens are:

(1) screening for convictions that are not job-related (as an example, the EEOC objects to exclusion of employees for conviction for child pornography when the employee will not have access to a computer or deal with children);
(2) screening for convictions without a time limitation (e.g., all felonies for violent crimes, not matter how old);
(3) screening for arrests or currently pending charges without investigating the underlying facts; and
(4) not providing an opportunity for individualized review.

The EEOC requires employers to review (1) the nature of the crime (e.g., violent, theft-related, etc.); (2) the amount of time since the conviction; and (3) the nature of the job held or sought.

Guidance

Ideally, we would be able to look at the job description for each position and tailor the screen to the duties of each particular job. For employees who will be working closely with other employees or the public, violent crimes are likely job-related. For employees with access to personal or confidential information, or valuable inventory, theft-related crimes are likely job-related. For an employee who works in a warehouse, DWI/DUI or related offenses may not be job-related, unless the employee drives a company vehicle or part of their responsibilities include driving for work. As to child pornography and similar convictions, we would suggest that there are numerous reasons for exclusion based on the requirements of many jobs. It may not matter to the EEOC leadership, but it is hard to imagine decent investigators and judges harshly treating employers on this one … just speculating.

The length of time is trickier, because the EEOC provides no guidance in this area. What we attempt to do is to determine a time period that protects the Company from negligent hiring/retention/supervision claims and also is not too long to violate the EEOC’s guidance. We often recommend 7 years for felonies, and 3 years for misdemeanors. This is the time since the release from prison, if applicable.

The EEOC cautions against using arrest records for screening purposes, as people are arrested all the time without cause. Therefore, if an employer wants to consider arrest records, they have to make some kind of inquiry into the circumstances leading to the arrest. If the underlying facts demonstrate that the individual has done something that could put the Company at risk, then the exclusion would be justified. However, this approach takes more than just looking at the arrest record and may not be practical for all employers.

Individualized Assessment

Finally, employers should be making an individualized assessment. Generally, we recommend providing the applicant/employee with an opportunity to explain the conviction record before disqualification. If the applicant/employee provides sufficient information that mitigates the offense (e.g., worked successfully for a competitor without incident), then the Company may decide to hire the applicant/retain the employee. However, these types of “waivers” should be tracked carefully to avoid disparate treatment claims.

Matt Korn’s article, “By The Way, Are You A Criminal?” provides more detail.

Howard & Matt