Chamber of Commerce: EEOC Should Allow Public Input on Background Check Guidance
April 10, 2012
The U.S. Chamber of Commerce has asked the Office of Management and Budget (OMB) to instruct the Equal Employment Opportunity Commission (EEOC) to allow for public comment prior to releasing new guidelines on the the use of employment criminal background checks and credit reports.
As we’ve previously written, the EEOC believes that these background checks have a disparate impact on minorities and are bent on creating rules that will limit the ability of employers to access and use such information. Ordinarily, agencies allow for public comments so that they can take into account all sides of the equation. In this case, has refused such requests on numerous occasions.
It appears that they are hiding under the veil that they are considering “guidelines” not “laws”, even though they know very well that their guidance will serve as a de facto law. In my opinion, they are bypassing public comment because they know that the public response will not be favorable not only from the business community, but also from consumer, volunteer and other charitable organizations.
The U.S. Chamber of Commerce is urging the Obama administration to compel the Equal Employment Opportunity Commission to allow public input as the agency ponders issuing new enforcement guidance regarding employers’ use of criminal background and credit checks.
In an April 2 letter to Office of Management and Budget official Cass Sunstein, the chamber said EEOC’s potential guidances on both topics warrant OMB’s review for procedural and substantive reasons.
“By all accounts the EEOC is now preparing to approve these significant guidance documents without making them available for public comments and without seeking review by [OMB],” the chamber told Sunstein, head of OMB’s Office of Information and Regulatory Affairs.
The chamber said that although EEOC has held public meetings “on the very broad topics” of employers’ use of background checks and individual commissioners have met with agency stakeholders to hear their concerns, EEOC “has not shared its draft guidance for the opportunity to provide comment.”
“[A]t this stage, members of the public can only guess as to the direction that the guidance will take,” the chamber said. “This is contrary to the strong public policy favoring pre-adoption notice and comment on guidance documents.”
The chamber urged OMB to ensure that EEOC does not finalize guidance until it has been properly reviewed by OMB and made available for public notice and comment.