As you may recall, the EEOC reminded employers last April that
consideration of criminal record histories has an adverse impact on certain
minorities and is lawful only when justified by business-relatedness and
business necessity. The EEOC indicated
that employers should conduct an individualized assessment of the circumstances
surrounding a criminal conviction such as “notice to the individual that he has
been screened out because of a criminal conviction; an opportunity for the
individual to demonstrate that the exclusion should not be applied due to his
particular circumstances; and consideration by the employer as to whether the
additional information provided by the individual warrants an exception to the
exclusion and shows that the policy as applied is not job related and
consistent with business necessity.”
As indicated by the OFCCP, screening applicants out because of a
criminal record may invite closer scrutiny.
Moreover, employers and applicants will be reminded of the EEOC’s policy
as follows:
·
When employers register with the government
employment agency (like a One-Stop Career Center), they will be sent Notice #1,
“explaining that the covered entity must comply with
federal civil rights laws which, due to the likely adverse impact of criminal
record exclusions on protected groups, generally prohibit categorical
exclusions of individuals based solely on an arrest or conviction history.” This
notice also explains limits placed by the Fair Credit Reporting Act on the
consideration of criminal records and federal Work Opportunity credits for
hiring individuals with criminal records.
·
Employers will also be required
to identify job announcements “that include hiring restrictions based on arrest
and/or conviction records.” Once any job
vacancy announcement is so identified, the employer will be sent Notice #2
encouraging the employer to remove or edit the vacancy announcement.
·
Employers will only be permitted
to list job vacancies where criminal record histories will be considered as
long as the applicants receive Notice #3, “explaining that the exclusions in
the posting may have an adverse impact on protected groups and informing them
that individuals with criminal history records are not prohibited from applying
for the posted position.” Employees of the government employment agencies are
forbidden from screening applicants based on their criminal record history and
cannot refuse to refer an applicant because of his/her criminal history.
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
