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It’s official–The Equal Employment Opportunity Commission (EEOC)  will meet on April 25, 2012, http://www.eeoc.gov/eeoc/meetings/next.cfm and is expected to vote and approve new enforcement guidance on the use of criminal background checks in employment.  Credit check guidance, which was initially on the table, has been scrapped—presumably because the proponents could not get the votes needed to ensure passage.  As the Wall St. Journal pointed out, the Commission is rushing to push the vote next week, before the imminent departure of Democratic Commissioner Stuart J. Ishimaru on April 29. Once he leaves, Democrats will lose their majority on the panel, and until he is replaced, future votes are likely to result in a 2-2 gridlock.

We expect the EEOC’s new guidance will substantially modify the existing guidance that has been around since 1987. New guidance will supersede the old guidance, and will take effect immediately upon passage. We anticipate it will contain additional factors for employers to consider when using criminal records, such as the age of the offender at the time of the crime, rehabilitation, timing of the inquiry into criminal history, relevancy of information, and best practices in handling open cases and arrests.  The guidance is intended to assist both employers and those charged with enforcement at the EEOC. But we are concerned that the passage of new guidance without input from employers or the public with muddy the waters and have a net effect of complicating the hiring process. Which is the last thing we need right now, when employers are finally starting to rebound and hiring is finally on the upswing.

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