Human Resources News & Insights

EEOC mandates new rules on background checks

The EEOC’s recent guidance concerning employers’ use of criminal background checks on job applicants comes down to two words: Individual assessment.

The bottom line of the agency’s recently released “enforcement guidance”: Blanket policies that automatically reject job candidates with criminal records are illegal.

The rationale: Such policies have been found to have a disparate impact on minorities, according to the EEOC.

The guidance comes on the heels of a recent settlement between the agency and Pepsi Beverages, which agreed to pay $3.13 million after EEOC investigation found that the criminal background check policy formerly followed by Pepsi discriminated against African Americans in violation of federal anti-bias laws.

One key change

The essence of the guidance: Employers have to make hiring decisions on applicants with criminal histories using three criteria. They are:

  • 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 specific position.

The new wrinkle, however, is the agency’s “recommendation” that employers go through an extensive “individual assessment” on each candidate.

And that could mean a lot of headaches for HR. Here’s a list of the things EEOC says you should consider:

  • 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 a 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 (such as education or training)
  • Employment or character references and any other information regarding fitness for the particular position, and
  • Whether the individual is bonded under a federal, state, or local bonding program.

There is one (rather dim) bright spot here, however — if the applicant doesn’t cooperate by providing the background information the employer seeks, the company can make the hiring decision based on the information at hand.

Best practices

The agency also offers a rundown of suggested best practices for employers using criminal background checks. Here goes:

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about the federal prohibition on employment discrimination.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
  • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
  • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with the law.
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Got that? Good luck.

The EEOC also has posted a FAQ page on its website. You can find it here.

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  1. This is ridiculous! Such approach will damage companies increasing liability risk as a result. Less such regulations, please! People should be equal in front of the law, rationale should not depend on persons’ race. If they whoever determined the stats saw that “non-minority” persons where majority of affected by background check criminal record, would they consider to change the policy on background check? Why discrimination allowed in politics? We are talking here about persons who did not follow the rules/laws to extend that they were convicted, and got a criminal record. Does it matter whether they are white, black, yellow, purple. fat, skinny, red-hair or blond? They made a bad choice damaging others, and thus got a criminal record.
    The background check policy is a general procedure used by majority of companies. You can’t regulate majority by setting up rules that benefit a minority. There are already programs that employ former criminals, and let those programs be – support those, research their stats, see how effective they are, etc. Let majority of businesses decide for themselves who they will hire!
    If the common sense is affected by politics – who needs such policies, and such politicians?

  2. Honestly, I see nothing wrong with it as we follow these same practices now. We do background checks on everyone and look at the results on a case by case basis. Hasn’t really been an issues for us.

  3. This is just a way to shove criminals on to businesses where the government will not have to foot the bill on them anymore because many, with current practices in place, are unemployable. Along with being required to have a felon on the payroll, a business will have full liability for potential future actions, as someone has previously stated, on it’s back. Another discussion on another article deals with businesses not hiring smokers but so far the EEOC hasn’t stepped in on this one yet. Just think of it, according to the EEOC’s new mandates, it’s more difficult to justify not hiring a convict than it is a smoker. To me that is just backwards.

  4. Oh GOOD HEAVENS! No one is saying we are REQUIRED to hire a criminal. Like I said we look at records on a case by case basis RIGHT NOW. We have hired people who had criminal records that were years ago and you know what, they worked out just fine! We’ve hired people who DIDN’T have a criminal record and have had issues. It warms my heart to know that so many people out there are so willing to give someone a second change (sarcastic)

  5. It is a shame that our government has become so authoratative in our private-sector lives that they forego making a comment on the entire intent of background checks; to review and determine whether the indivdiual has a liklihood to commit a crime which may affect your business. Rather, they disgregard this enitrely in their determination. Why not instead look at the statistical evidence as to the propensity of repeat crime as to validate consideration of prior criminal records? I could buy into that.
    Agenda-driven vs. intelligence-driven decisions will devestate any republic.

  6. I, for one, being a woman over 40, am grateful that the government has stepped in to ensure that employers are fair in their treatment of employees. My mother told me a story of how she was let go from her job because she got married and the company didn’t employ married women. Eventually, this rule was changed…I’m sure from presure from government …and she was allowed to return to work.

    Luckily, we live in a day and age where a woman has to no longer be held back because of her sex, marital status, how many children she has, or her age. If that has taken place because of government intervention then so be it.

    Some positions in our company require that the person hired doesn’t have a criminlal history in certain things…like fraud, embezzelment, etc. This is a requirement by the state. In some cases, because the offense was so long ago, people with a criminal history were permitted to be hired. And it’s NEVER been an issue.

    Honestly, this isn’t a big deal in my opinion.

  7. Best practice: “Determine the specific offenses that may demonstrate unfitness for performing such jobs.”

    So which of my job(s) are convicted rapists unfit for? And, I’m supposed to consider whether or not the conviction was for one rape, multiple rapes, etc.?

  8. It’s called “using your own judgement”. No one is telling us that we HAVE to hire a rapist. I think we are just being asked to look at someone’s background and make a judgement call. We do it here all the time and AGAIN…so far we have never had an issue.

  9. Common Sense says:

    Well said Spock, Unfortunately the McCoy’s of this world will never grasp your logic.

  10. If I’m a “McCoy” so be it. Since we actually have to do this where I work now, I feel I’m pretty qualified to be able to “get it”.

  11. @Cindy…you just do not get it that the government is obviously making it harder for organizations to justify not hiring a criminal or else why would they have even issued these new rules. You think they did it just to be doing it with no changes as a result? And to even compare this to gender and marriage is totally absurd. Last time I checked, being a woman or even a married one is not illegal in this country and therefore the government was right to step in here, but in the case of not hiring convicts, we’ll that is none of their business. The bottom line is that these people broke the law in the past by choice of behaviors and these choices may just haunt them for the rest of their lives. I mean, if I owned my own business I shouldn’t have to justify not hiring “thugs” to work in it. Moreover, there may very well be businesses out there who are willing to hire them (and that is their business) but the government should not make it more difficult for those businesses who do not want to hire them to deny them employment.

  12. No…..I DO get it. ONe of our best hires was someone with a criminal history. We took a chance on her and she was extremely grateful. I am proud to say that I work for a company that doesn’t HAVE to be forced to do the right thing…give people that second chance in life. Some DO deserve it.

  13. Common Sense says:

    @Cindy. What “you get” is that you have a choice whether or not to hire certain criminals and have elected to give some a “second chance”. Good for you. I applaud your efforts and success.
    What you don’t get is that hiring the right people might be a business owners “last chance” to make a business successful. Employers should not be pigeon-holed or have to jump through more hoops than they already do to make that happen. Some (business owners) DO deserve that.

  14. @Cindy yes I agree but this should not be mandated by legislation. This should be an employer’s choice. You are right you did take a chance on this person with a criminal history and fortunately, it has worked out for you and your company. If your organization wants to hire those with a criminal history that’s fine (ours does too and we take it on a case by case basis) but the government should not get involved in this to make it harder for organizations out there to discriminate against convicts. I believe as well as anyone that people can change, but I also feel in most circumstances they do not change because they do not want to change and studies show this. That is shown in statistics in behavioral interviewing. People who have behaved in a certain way in the past have a propensity to behave the same way in the future. I can say that there are exceptions to this rule, but that is the minority of circumstances.

  15. Even with this legislation, I believe we STILL have the right to say yes or no to hiring a convict. I believe that everyone seems to be making a mountain out of a mole hill simply because you are looking at situation from a “political” view point.

    If this legislation would pass, we would do nothing different. We still wouldn’t feel compelled to hire someone we didn’t think had changed or was not good for our company.

  16. Common Sense says:

    @Cindy If the legislation does not compell us to do anything different, then why was it passed?

    I change my socks and underwear everyday, but I don’t want the federal government passing legislation compelling that I must do it. Would you consider me to be making a mountain out of a mole hill if I complained about a new clean underwear mandate?

  17. Really? You can compare business conduct with changing your underwear?

  18. Common Sense says:

    @Cindy, to focus on “changing underwear” is to miss the point altogether . Maybe you need a refresher course on what an analogy is and it’s purpose in pointing out similarities between two concepts in certain respects. I purposefully used an absurd analogy to drive home the point because I felt a subtle analogy was somehow not going to cut it.

    I could not help but notice that in scoffing at me over my poignant analogy you conveniently managed to fail to address the question at hand. If legislation does not compel us to do anything different, then why is it passed?

  19. Like I said, my bottom line comment on this issue “making a mountain out of a molehill” is how I feel. Government has been running our personal and employment life for a long time whether we want to admit it or not. That’s not going to change. Now that we have government intervention, unions are no longer necessary…thank heavens. I’d much rather have govenment intervention than having a union dictate what we do as they mostly, in my opinion, have always protected the worst of your employment team. At least with government laws, it ends up being a little more fair and, in my opinion, gives the employer more options for choice.

    We are never going to agree on this so lets just agree to disagree.

  20. This is pretty scary, that free-minds transformation has finaly occurred, and it is now even does not wring the bell, when government regulations limit freedoms of choice in business (this particular case), and what has been built into the system by founding fathers, now more and more deviates from initial principals and changes the country bit by bit. The lack of education of average people, their lack of international experience, and their not willing to take personal responsibility for decisions and making choices, as well their readiness to accept services not earned, prepared the soil for the seeds that find no resistance, and bring eventually the fruits everyone will have to taste, regadless of their initial position. Hope I don’t have to say “Welcome to Soviet Union”…

  21. Common Sense says:

    I can agree with your “union” sentiment.

    I can agree with your statement that “Government has been running our personal and employment life for a long time whether we want to admit it or not”.

    I agree to disagree that I and MMAN and I are the ones “making a mountain out of a molehill” when you and the EEOC are the ones endorsing more expansive federal rules that dictate a business’s hiring practices, even if the legislation would not compel businesses to do nothing anything different.

    To say that one evil (big brother intrusions) is lesser than another evil (unions) does not make it right for the government to intrude. I simply don’t think that the never ending onslaught of government mandates and rules are molehills. (even if we are just speaking of one example).

  22. @Irina…it is indeed sad that it has come to this point in this country. No doubt “gubment” regulation has run amok in this day and age but I think we could all agree that businesses have brought a lot of it on themselves throughout the years with unethical behavior and what is now illegal behavior. With that said, government is for the ungovernable.

  23. If it wasn’t for govenment intervention, we’d still need unions unfortuanately. Unions had their place and time but even they got out of control.

  24. Common Sense says:

    Fine Cindy, I agree with that sentiment too, but unfortunately the government is now an entity “out of control” as well. Why bemoan one institution for being out of control and then condone another?

  25. Worker Rights says:

    @Cindy…are we also to say that businesses had their place and time as they too have gotten out of control. I mean it was business that was one of the primary culprits that have gotten us into this economic disaster through unethical behavior. While business is always a necessity, our model of business in the U.S. may very well be out of date as well where a few wealthy individuals own businesses. I think we need to move to a model where the workers own the businesses and reap the benfits of the same.

    Maybe in your particular industry unions are obsolete. However, in industries such as coal mining, sometimes the unions are the only ones to hold coal operators to the fire in things such as safety as the government doesn’t do an adequate job of it. To illustrate, there are many coal mine operators who have unpaid fines from major, safety violations that they were handed years ago for these violations and continue to do the same old bad bahavior. However, when a union is involved, many times the mines are safer because they do hold the mines accountable.

  26. The government being “out of control” isn’t something that has happened just in the last three years. It’s been out of control in one way or another for a very long time.

  27. Common Sense says:

    Cindy, you need to help me out. Once again I agree with your obvious statement, but I still don’t understand how you continue to bemoan the increasingly out of control government at the same time you condone increasing regulations. It really doesn’t matter if the government has been out of control for three years or 100 years. Are you saying because it has been out of control for more than three years we should throw up our hands and simply agree to unnecessary regulations?

    If something is wrong it is wrong. Just because it is not as bad as another wrong or has been happening for a long time are not excuses to condone the wrong.

  28. Felonized says:

    I totally agree with the regulations and suits against those who practiced discrimination in a “christian nation”, in god we trust. God forgave. I am a felon, i have made mistakes, but that fact has no bearing on who i am today. I am a proud father loving son and brother and great friend. And all i want to do is support my family and live peacefully. Its common sense if you dont want some criminals to go back to crime then you give them the opportunity to contribute to society by working and paying taxes, not shun them then point the finger and say “look at the lazy criminals that dont like to work, wasting tax payers dollars. it is this inability to have compassion and forgivness in this country why this country is failing. i guess i ceased to be a human once i became a criminal right?lol. hypocrites and cold devilish hearts occupy this nation, sad to say.

  29. I am proud to say that I work for a company that gives people a second chance.

  30. If my name was Jaun Benitez that just got a free drivers license and Social Security card in one of 14 states I would be more shown preference than someone that has three pieces of federal I.D.,passed Homeland Security and F.B.I. background checks and was born here!

  31. J. Williams says:

    Fear of liability (due diligence laws)- that is why they’re not ‘taking a chance’- even on old spent misdemeanors that are more than 20 years old! There is a political hot potato that far too few in Washington are willing to confront. That would be the nearly 1 in 4 Americans with some form of criminal record in this country. There are a number of amazingly talented and intelligent people who have been convicted of minor crimes at some point in their lives. This latest push to address the issue of Felony disenfranchisement in employment doesn’t seem to address the issue of misdemeanors. Isn’t this putting the horse before the cart- so to speak?
    In this current climate of over-zealous prosecution, default to plea deals- especially for the poor, ramped-up patrols, and increasing police misconduct, we can probably agree that people aren’t perfect; and probably never were. But the days of officer community assistance seems to be vanishing. The days of stopping citizens and offering them help, or providing warnings for simple human mistakes in judgment, seem to be disappearing. Consequently, more people than ever are being convicted of minor crimes and misdemeanors.
    With 65 to 68 million Americans with some kind of criminal record, more than any country in the world, isn’t it time to take a hard look at why this is? Is it because the American culture cultivates this type of environment? Are Americans villains? I earnestly don’t think so. We live in a culture that suggests that we all have a voice in our democratic process; that we all matter. And with this freedom comes a tendency to ‘live out loud’- sometimes a little too loudly. But how many of us are truly ‘criminal’- by definition? We don’t endorse- or participate in such cultural practices as honor killings, acid attacks, genital mutilation, or deny women the rights that any just society would see as basic and fundamental. Sadly, we seem to be vilifying far too many good people in this country. And I think there are a lot of citizens in this country who are feeling frustrated, powerless, and like their government could care less about them. I think that is why so many seem so angry and divided.
    A increasing number of Americans are feeling like they not only don’t matter, but that their government is undermining the middle class and destroying the American Dream, by putting money and politics above the concerns of the people. I think it would be presumptuous and short-sighted to assume that this is the case. I believe it has more to do with policy, law, and conflicting interests creating immovable gridlock in our country. This would obviously impact the economy.
    One major point of gridlock lies in the fact that over 65 million people in this country have some form of criminal record and have increasingly limited employment options. The internet has made the world a smaller place, and with more and more employers making background checks a part of their hiring process, many of those with any type of record are automatically disqualified; regardless of how old conviction(s) are, whether they’re old spent misdemeanor(s), or are relevant to the job. I’d like to add that there is absolutely no proof that would suggest that any person who has been convicted of a crime(s) would be any more likely, than anyone else in the population, to commit a crime on the job (often the argument of far too many employers- suggesting that their current employees/clients/assets are at greater risk if they were to hire someone with a prior record). Case in point; many of the shooters in the media of late did NOT have a prior criminal record; so background checks would have been rendered useless.
    I am just as concerned for the safety and protection of this country; as any proud American would be. But is continuing to deny employment and a sense of purpose to millions and millions of citizens the answer?
    Wouldn’t it be in the best interest of our great nation to consider rehabilitative attitudes toward re-entry? I am not suggesting a ‘blanket’ policy that gives restoration to those who haven’t earned it. But I am suggesting that individual people change. I am one of them. Might those individuals who have changed their reckless and selfish behaviors, having worked very hard to become a better person, have the opportunity to become a contributing member of society?

    Is it really necessary to over-look so much American human potential?

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