The new but as yet unpublished EEOC enforcement guidance is getting a lot of attention. So much so that we’ve added a second webinar to review the guidance once it is published.
I discussed with attorneys and HR pros what may be included at the Fort Worth Human Resource Employment Law Update yesterday. The responses ranged from eye-rolls to exasperation and frustration.
For those hearing about this, on April 25th, the Equal Employment Opportunity Commission is expected to issue new “enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.”
This will be the first guidance on this topic issued by the EEOC in more than 20 years. It is widely expected that the new guidance will reflect the EEOC’s recent litigation trend of trying to limit employers use of criminal records in making employment decisions. We anticipate that much of the new guidance will reflect the policy considerations suggested in Mike’s Background Checks Under Fire presentations to SHRM chapters and webinar audiences. However, lawyers and lobbyists we trust (yes, there are a few) have suggested that the new guidance may include several more restrictive items, including:
“Ban the box” – a suggestion that employers remove criminal history inquiries from the employment application and not make such inquiries until the applicant is being interviewed or even later in the process.
A requirement that employers create very job-specific guidelines identifying which kinds of criminal offense are directly applicable to a particular position.
A requirement that the employer discuss the results of the background check with applicant before making the hiring decision (this would be additional to the employer’s responsibility under the Fair Credit Reporting Act to provide the applicant a copy of their report and their summary of rights prior to taking adverse action).
Some definition of a “rehabilitation period” – this may come in the form of a 7- or 10-year limit on the review of criminal records (much like California’s or Washington’s state law).
A requirement that the criteria used in evaluating criminal records be statistically validated by an employer – a requirement that would be expensive and require significant studies conducted by statisticians.
All of the above is speculation (some of it based on conversations with people close to the decision-makers) and we won’t know what is included until the guidelines are released. As always, the devils are in the details.
In the webinars, I will review the content of the new guidance in the context of the prior EEOC guidance documents on the use of criminal arrest and conviction records, Title VII, and the EEOC’s recent litigation history. It will also present employers with the specific policy items that they may need to consider in reviewing their current background screening practices.
Space is limited to 100 participants in each session. Reserve your Webinar seat now at:
April 27, 2012, 2:00 pm CST https://www1.gotomeeting.com/register/396722496
Arpil 30, 2012 1:30 pm CST https://www1.gotomeeting.com/register/162602632