For many businesses, especially those in the healthcare, childcare, and firearms industries, staying in compliance when it comes to who they can or cannot hire is like walking a tightrope. You want (and may be legally obligated) to ensure a safe workplace by hiring employees who show responsibility and good judgment – however, in certain places you are also constrained from digging too deep into an applicant’s criminal history.
One agency holding the leash on employer criminal screening processes is the Equal Employment Opportunities Commission (EEOC).
Although the EEOC does not have the authority to prohibit employers from conducting criminal background checks on potential applicants, they did issue new recommendations and warnings in 2012 for employers who violate Title VII of the Civil Rights Act of 1964 by screening out and rejecting job applicants based on their criminal history.
According to the EEOC’s Compliance Manual, there are two ways employer’s can use criminal history information in a discriminatory way: 1) treating job applicants or employees who have the same criminal records differently because of their race, national origin, religious affiliation, or any other protected characteristic; and 2) setting up criminal record exclusions in a way that disproportionally targets a particular race or national origin, without proof that the exclusions are “job-related and consistent with business necessity.”
Based on the new guidelines, employers are advised to examine their current criminal background check procedure and consider instituting the following policies:
- Eliminate hiring practices that automatically exclude applicants from employment based on any criminal record. Start by refraining from asking about an applicant’s arrest record and/or criminal history on the initial application;
- Train hiring managers about Title VII and its laws against employment discrimination; and
- When screening applicants, conduct individualized assessments on nature of the crime, the time elapsed, and the nature of the job, in order to screen out only those applicants whose criminal conduct relates to the job in question
The EEOC has made clear that they intend to take legal action against any employer with a rigid “no felony conviction” policy, and/or who fail to perform individualized assessments when screening job applicants with a criminal history.
Meanwhile, a number of cities and states have enacted “ban the box” laws that limit an employer’s ability to run background checks on an applicant’s criminal history. Last March, the city of Atlanta was the first employer in Georgia to join the 40 other cities and counties across the U.S. who have removed questions regarding criminal history from their job applications.
On top of state and local law, employers must make sure they are adhering to the FTC’s (Federal Trade Commission) Fair Credit Reporting Act (FCRA), or risk a steep fine.
With so many regulations to keep up with, employers need an extensive background check system that keeps them complaint with continual legislative changes. By using the Innovative BCS suite, you can guarantee that your screening process remains in compliance, as well as keep your workplace safe by monitoring any criminal record updates from your employees or applicants.