On April 26, 2012, the EEOC released the “Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The final version basically defines how criminal records may be used in the employment process. In practice, what the ruling means for employers is that blanket hiring policies that filter out applicants with arrest records are discriminatory, and therefore illegal.
As an HR administrator, there are some steps you can take to make sure your company’s policies are in line with the law. Start by reviewing each job class in your company and assess what the risks are to your employees and company. It doesn’t have to be complex or detailed. Here’s an example:
Job Class Review
- Clerical: Administrative only; no client/customer contact; does not operate a vehicle while on company business/errands or have access to money or proprietary information such as personnel information or company records.
- The risks are violence/harassment towards employees and theft of company property. [Note: These risks would apply to every employee.]
Background Check components should include a criminal background check for convictions related to violence, theft or drugs within the past seven years (Again, standard).
- Include in your process a review of any criminal record that includes the following factors:
- The nature and gravity of the offense or conduct
- The time that has passed since the offense, conduct and/or completion of the sentence
- The nature of the job held or sought
This may sound like a lot of work but, practically speaking, it isn’t. With a few exceptions, generally every employee poses the same risk of theft and/or violence. The key, as with all things HR, is consistency.
For example, if the job is clerical and the offense is a misdemeanor theft less than $500, the offense is over five years old, and the applicant has no prior or subsequent records, is it really relevant? What about a misdemeanor possession of marijuana six years ago? Does it affect the applicant’s ability to do the job?
However, if there are offenses prior or since, it wouldn’t be unreasonable to presume a “pattern of behavior” that puts your company at risk by hiring this person. Additionally, if those offenses are felonies instead of misdemeanors, the “gravity” of the offense changes dramatically and your decision should change accordingly.
In each case where you have someone with a criminal record, the guidance recommends an individual assessment. This means you should ask the applicant for his/her side of the story. We also recommend reviewing the actual criminal case files to compare the official version with theirs.
Your background check provider can help you with this. Whatever decision you make, it is important to have documentation as to how and why you did what you did – and then be consistent with similar situations in the future.
This post is based on a thorough review of the new EEOC Guidance on the use of criminal records in the hiring process that was originally published by our partners at LS Screening.
Read the full article published by LS Screening here.
Download a hiring checklist from LS Screening based on the guidance here.
Review of EEOC Guidance on the Use of Criminal Records in the Hiring Process