EEOC Addressing Background Screening for Employment

The Equal Employment Opportunity Commission (EEOC) is addressing the use of credit and criminal background checks in pre-employment screening. Their opinion is that the checks are discriminatory and should be discontinued.
The two main areas causing problems for companies:
 
1.     Companies who have blanket policies to not hire people with a poor credit score or criminal record
  • Job experts say the problem is employers could routinely give preference to white applicants. Check to see if your practices exclude most blacks and Hispanics, while opening the door to white applicants. If you see any patterns, the EEOC could too.
  • Companies who perform background checks are recommended to periodically review their criteria. For example, the companies who have a blanket policy against hiring applicants with criminal records (without regard to whether the conviction was job related, how serious and long ago it was and if there was any evidence of rehabilitation), will most likely need to change their practices so they are in line with the EEOC guidelines.
  
2.CCompanies who can’t show a connection between background checks and the job itself
  • The EEOC generally recognizes some background information might have bearing on a job applicant’s suitability for the job. For instance, hiring a convicted embezzler to handle money or someone with a bad driving record to drive a company car, etc. If you can show the correlation between suitability and background checks for specific positions, you’re better off.
  • If you’re a business owner, this means just because a background check shows a job applicant was either convicted of or found guilty of a crime, he or she cannot automatically be eliminated from employment consideration. Employers are able to use convictions for consideration, if the conduct that led to the conviction is related to the position applied for. This is on the basis of valid and sufficient “business necessity.” This can be determined based on the following factors:
    • Gravity and nature of offense
    • Nature of the position
    • Time elapsed since conviction and/or completion of the sentence 
  • If the above factors reveal the applicant unsuitable for the job, the EEOC will allow the conviction record to be a bar to employment. Many courts have adopted this same position.
To keep your company compliant, you should closely review your hiring processes and standards used regarding using credit and criminal records when making all hiring decisions. You should also explore how your state guidelines differ from the federal guidelines.
 
For additional information from the EEOC on this topic, click here.
Modern Business Associates is an HR company that focuses on payroll and HR outsourcing. We routinely work with clients on employment screenings. As a Professional Payroll and HR outsource organization, our clients rely on us to help them effectively deal with these kinds of topics.