Madison Square Garden Sued Over Background Check Revisited
August 21, 2008
In my post, Madison Square Garden Sued Over Background Check, from earlier this week, I failed to consider an important point in this case: Does the employer have a policy that they do not hire anyone with any type of criminal record?
Why is this important? While the FCRA allows organizations to conduct background checks on prospective employees, the Equal Employment Opportunity Commission (EEOC) has rules that govern the use of adverse information specific to criminal records.
The Equal Opportunity Commission has deigned that each and every employment application inquiring about criminal history should include the following disclaimer (or its like):
A criminal conviction will not necessarily be a bar to employment; rather, such information is only relevant in determining whether the conviction is directly related to the job for which you are applying. Factors, such as age and time of the offense, seriousness and nature of the violation, and rehabilitation will be taken into account.
Many states have similarly legislated (or have included in regulations or guidance) that the elements of a crime for which an individual was convicted must be “substantially related” or “directly related” to the job duties of the position sought. Applying a matrix subject to the deficiencies described above is inconsistent with this goal because matrices do not allow for extenuating circumstances, deviations or mistakes that often occur when evaluating the employability of applicants or employees.
What does this mean? First, employers should be careful of developing blanket policies of not hiring any individual with any type of criminal record. It also means that employers should be wary of Automatic Adjudication Modules for many reasons including the EEOC concerns. Every criminal record should be evaluated to determine how long ago it occurred, whether the individual is a repeat offender, if the criminal activity relates to the job responsibility, etc.
I also want to thank the individual who helped point out this important omission from my earlier post.