Laborchex Companies

New Federal Guidance on the Use of Background Checks

19 June 2012

In April 2012, with a 4-1 vote the Equal Employment Opportunity Commission (EEOC) approved a new 'guidance' regarding the way employers use criminal record checks in the employment process. EEOC Chairperson, Jacqueline Berrien, said: "The new guidance clarifies the EEOC's longstanding policy concerning the use of arrest and conviction records in employment, which will assist jobseekers, employees, employers, and many other agency stakeholders."

Basically, the EEOC is stating that the use of criminal records in the background screening process has a somewhat unfair impact on minority and protected classes of the population... and they are expecting (with possible penalties for non-compliance) that employers follow this new guidance. The use of arrest and conviction data is outlined in this guidance, and suggestions regarding everything from questions on the job application to how and when to discuss an applicant's criminal history with him/her are also provided. One suggestion is even that the basic question, "Have you ever been convicted of crime?" (and similarly worded questions) be completely removed from job applications.

"Guidance," as given in these directives is not legally binding, but could become law in the future. Still, this guidance must be taken very seriously. We have heard that the EEOC is already creating teams of regulators to randomly, or with a specific schedule, review the policies and paperwork of employers.

At Laborchex, we are always evaluating local, state, and federal laws and actions that may impact how our clients use our reports, and any limitations that may be placed on us when we provide these to you. At this point, we are not making any changes to our reporting process.

However, we strongly suggest that you review the EEOC information on the link below. Should you have any questions regarding how this new guidance impacts your business, we feel that you should consult your legal counsel. Also, you can search the web for various news stories about this latest EEOC guidance.

Thank you for your business!