Just What Is the EEOC Thinking About Criminal Background Checks?

Nick Fishman

Labor and employment attorney, Jon Hyman of the Ohio Employer’s Law Blog fame posted an story about a recent opinion letter issued to the Peace Corp. on how to properly perform background checks on their volunteers.  The advice they provided is truly insightful as to what they might have in mind following their July hearings. Check out Jon’s post below. I have highlighted items to take note of.

The Peace Corps asked the EEOC for an opinion on the legality of its use of conviction and arrest records to screen potential volunteers. In response, the EEOC published an informal opinion letter, which offers guidance for employers who are considering using conviction or arrest [records] as part of their screening processes.

Conviction Records

  • According to the EEOC, conviction records have the potential to have a disparate impact on African Americans and Hispanics. Therefore, employers should only use them when “job related and consistent with business necessity.”
  • To ensure that applicants’ criminal history information is used in a way that is consistent with Title VII, the EEOC recommends that employers limit criminal history inquiries to convictions that are related to the specific positions in question, and that have taken place in the past seven years.

Arrest Records

  • Arrest records are different than conviction records because of their inherent unreliability. For example, they are not persuasive evidence that the person engaged in the alleged conduct, and may also be poorly reported or updated.
  • If employers decided that arrest records serve a useful purpose in screening applicants, their use should be limited to offenses related to the specific position.
  • To account for the potential unreliability of arrest records, employers should also provide applicants a reasonable opportunity to dispute their validity.

So, there are two things in here that provide some insight as to where they are going on this.

  • Employers should only use information from the past 7 years.  This jibes with California laws, but most other places throughout the country do not place time restrictions on convictions that can be considered.
  • Employers should give applicants the opportunity to dispute the information on arrest records.  Now, like you, my first thoughts were that they have that right as part of the Adverse Action process.  However, based on some remarks that I’ve heard from those in attendance at last week’s NAPBS conference, this is something they would want before the adverse action process begins.  So, they want a “pre-pre-adverse action” process?
Nick Fishman
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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
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