EEOC Issues Concerning Direction on Employee Background Checks

Nick Fishman

Since the Equal Employment Opportunity Commission introduced their guidelines on employers’ use of criminal background checks back in April, I’ve taken a wait and see approach.  Sure, I’ve been concerned about the fact that the guidance wasn’t really clear in certain areas: Should employers remove the question that asks an applicant to provide information on past convictions? How exactly is a company supposed to conduct and individualized assessment? What does the EEOC mean when they say that there will be certain jobs that clearly won’t be able to hire those with particular offenses?

I wanted to believe them when they said that these guidelines are simply a continuation of the policies that were already in place.  Well, after seeing the following quote in the Human Resources Journal, I’m getting a little concerned that might not be the case.  See below.

“If companies ask job applicants about their criminal histories they could face discrimination lawsuits. John Hendrickson, the regional attorney for the EEOC’s Chicago district said, ‘I would suggest to (businesses) that they think long and hard about why they think they need to do a criminal background check,’ insinuating that if they felt it was not required, they’d be safer not doing it.”

So, here are a few questions I’d like to know the answer to.

  • Does the EEOC has a list of positions they believe should be exempt from employee background checks?
    • If so, how is the EEOC an authority on determining a company’s vulnerabilities?
    • If they don’t have this list, aren’t they just setting up employers for failure?
  • Will the EEOC testify in court on behalf of an employer that decided not to conduct an employment background check when they get sued for hiring someone whose past criminal record could have suggested they might be a danger to persons or property?
    • Will they assume any liability caused to these businesses?
  • Will the EEOC make restitution to those harmed by these people?

I think the EEOC ought to look at the legislation Ohio State Senator Shirley Smith just passed last month.  Instead of punishing employers for conducting background checks, she’s initiated a program which allows those with convictions to apply for a certificate of employability.  And in the event a person with such a certificate engages in criminal activity in the workplace, it offers the employer insulation from law suits.  This approach comes much closer to aligning interests of employers and people with criminal records.

 

Nick Fishman
Follow Me

Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
Nick Fishman
Follow Me
Tweet
Share
Email
Share