Guidelines for the use of Criminal Backgrounds in Employment
Discrimination cases are typically contained to protected classes, outlined in title VII as: age, race, religion, gender, sexual orientation, disability, and as of 2014, Nationality/immigration status.
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Criminal back ground is not included in these protected classes however, the courts have found that employment decisions based on criminal backgrounds should have some guidelines.
The Equal Employment Opportunity Commission (EEOC) has published guidelines for the use of criminal records in employment related decisions. The EEOC recommends that all employment decisions based on criminal convictions “should establish that the exclusion of an applicant or employee due to a criminal conviction was job-related and consistent with business necessity”, taking into account the following factors:
- the nature and gravity of the offense or conduct
- the time period elapsed since the offense was committed and/or completion of the sentence
- the nature of the job held or sought.
Obviously a criminal background will have more bearing if you are looking at a job around children than on a construction site. These guidelines help to define that.
The EEOC publication embraces this recognized standard, but also provides further guidance and recommendations designed to help employers comply with Title VII:
- Employers may consider convictions but not arrests. Employers should never consider arrests because an arrest is not evidence that criminal conduct has occurred. However, while an employer cannot make a decision based on the mere fact that an arrest occurred, they certainly can (and should) investigate whether the conduct underlying the arrest justifies an adverse action. The EEOC guidance emphasizes that the underlying conduct, and not the arrest itself, is potentially relevant for employment purposes, i.e. if you were arrested for DUI twice but never convicted, they should carefully consider whether a driving job is a sound choice.
• Employers should develop a “targeted screen” or more specific questionnaire. Targeted screens – i.e., those that consider the nature of the crime, the time elapsed, and the nature of the job – are more likely to meet the “job-related and consistent with business necessity” test, whereas blanket inquiries (e.g., “have you ever been convicted of a crime?”) are more likely to be problematic.
• Employers should not ask about criminal convictions on job applications. Instead, employers should inquire into criminal records only after the employer is knowledgeable about the applicant’s qualifications and experience. If employers do ask about convictions on job applications, the inquiries should be limited to convictions that are job-related and consistent with business necessity.
• Employers should perform an “individualized assessment.” An individualized assessment would consist of notice to the individual that he or she has been screened out because of a criminal conviction, providing the individual an opportunity to explain and present information to show why he or she should not be excluded, and consideration by the employer of the explanation and information presented by the individual. Evidence that may be considered by employer as part of this assessment includes: the circumstances surrounding the offense, the number of offenses for which the individual was convicted, the age of the individual at the time of conviction or release, evidence that the individual performed the same type of work for the same or another employer without incident, the length and consistency of employment history before and after the offense, rehabilitation efforts, employment or character references and whether the individual is bonded under a government bonding program.
Labor law is always complex, and when dealing with matters such as criminal record it can be even less cut and dry. Let my team at UELG help you sort it out with a free review of your case, call now.
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