Employment and the EEOC’s Updated Guidance on Employer Consideration Arrest and Conviction Records in Employment Decisions

The Society of Human Resource Professionals did a survey of employers and found that 72% conducted criminal background checks on all job candidates. This can be a huge barrier to employment for any job candidates with a criminal record.

We recently began working with two job candidates with a criminal record; one had a possession-related conviction; the second with a DUI arrest and conviction. These two cases are not capital crimes or crimes of violence. Both of these offenses occurred more than 7 years ago and hard lessons have been learned.

This resulted in a lot of discussion with the EHS team. Both of these candidates have college degrees and extensive experience in their fields. At this point, they have been unable to obtain so much as an interview for positions they would otherwise be qualified.

On April 25, 2012, the EEOC issued an updated enforcement guidance to build on it’s prior policies regarding the employer’s use of criminal records. The prior guidelines gave three factors for consideration: 1) the nature and gravity of the offense; 2) the amount of the time elapsed since the offense and/or completion of the sentence; and 3) the nature of the position being sought in relation to the offense.

The new guidance provides for an individualized assessment when an employer relies on a business necessity defense to exclude an individual from employment. The guidance also states that an arrest is not evidence of guilt and cannot be used to deny employment.

This is a very brief account of what is contained in the EEOC’s new guidance for criminal records but it is an area where employers will need to focus and revisit their policies.

Returning to the discussion about our two clients, what advice and assistance can we give them? Of course, our first advice is don’t break the law, however, now that we find ourselves one bad decision passed that point, we advise the following:

Be truthful- You don’t want employers to think you are trying to hide
Something. It will appear on your criminal background check so you
should be prepared to address it.

You broke the law and owning up to your mistake and speaking to it honestly is the best course of action. Some recruiters recommend delaying the discussion, if possible. You can write on the application “…would like to discuss.” Speaking from experience, I have hired someone with a criminal record. Had they not personally called me to discuss their situation, it is very likely they wouldn’t have gotten the job. Once I understood the circumstances and the fact that the offense had no relevancy to the job I was hiring them for, they were my best candidate and turned out to be a long-term and excellent employee.

Educate yourself – You should understand your charge and conviction. Believe it or not, some people don’t actually understand. Have your records been sealed or expunged? If not, there are cases where this can be done. Consult your state’s website for information and you should also consult with legal counsel. In certain cases, the conviction can be dismissed but the arrest will remain. This process may also limit who is actually able to view your records.

In addition, know your state’s laws regarding employment and criminal records. There are certain jobs and industries where certain types of offenses legitimately preclude employment. Jobs in health care, teaching, elder care and child care are examples.

Research resources – There are resources available that can help. Remember each state is different. If you have moved from the state where the crime was committed you will want to check the laws that apply where you are residing and seeking employment.

There are many sites available on-line that provide criminal background check information. You may want to obtain your own background check so that you know specifically what background information is being provided to potential employers. Some provide free trial periods and others charge from $12 to $60. These price variances are connected to what databases are included in the check. This site, provided by the State of Washington’s Workforce Development Program, provides free access to the Consolidated Court Automation Program: http://www.wcca.wicourts.gov/index.xsl.

We would like to hear your comments or suggestions.

Dee Jones
Forum Moderation
Employee Help Source

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One Response to Employment and the EEOC’s Updated Guidance on Employer Consideration Arrest and Conviction Records in Employment Decisions

  1. Pingback: Un update on the recently published EEOC’s New Criminal Record Guidance April 26, 2012 « kansas Law

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