March 1, 2016 e news sign up get alerted as soon as new content is available >> Over the last few years, the Equal Employment Opportunity Commission (EEOC) has been cracking the whip on employers over the use of criminal background checks during hiring. (2) Where formal and scored procedures are used. 99 Id. Equal Emp't Opportunity Comm'n, 2-III B., Covered Entities, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B (last visited April 23, 2012). The Community Center also offers an opportunity for individuals identified for exclusion to provide information showing that the exclusion should not be applied to them. Washington, DC 20507 See also Retail Theft Database, ESTEEM, Workplace Theft Contributory Database, LexisNexis, http://www.lexisnexis.com/risk/solutions/retail-theft-contributory-database.aspx (last visited April 23, 2012) (stating that their database has "[t]heft and shoplifting cases supplied by more than 75,000 business locations across the country"). However, if an employer decides to impose an exclusion that goes beyond the scope of a federally imposed restriction, the discretionary aspect of the policy would be subject to Title VII analysis. An employer's neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability). 139 See, e.g., grain inspector's licenses (7 U.S.C. 2007); Green v. Mo. Pol'y 483 (2006) (evaluating juvenile police contacts and arrest dates from Philadelphia police records for an aggregate of crimes for individuals born in 1958, a 2006 study concluded that the risk of recidivism decreases over time and that, six or seven years after an arrest, an individual's risk of re-arrest approximates that of an individual who has never been arrested). 164 See generally EEOC Informal Discussion Letter (March 19, 2007), https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-175 (discussing the EEOC's concerns with changes to OPM's suitability regulations at 5 CFR part 731). 43 A "consumer report" is defined by FCRA as "any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for . Posted in Criminal Background Checks, EEOC and Government Litigation, Employment Discrimination, Employment Policies After a nearly six-year legal battle, the Fifth Circuit has struck down the U.S. 13041(c) ("Any conviction for a sex crime, an offense involving a child victim, or a drug felony may be grounds for denying employment or for dismissal of an employee. Rev. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. 1999) ("[A]n adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII."). What is the FCRA? 50 Conducting Criminal Background Checks, supra note 49, at slide 7 (39% of the surveyed employers reported that they conducted criminal background checks "[t]o reduce/prevent theft and embezzlement, other criminal activity"); see also Sarah E. Needleman, Businesses Say Theft by Their Workers is Up, Wall St. J., Dec. 11, 2008, at B8, available at http://online.wsj.com/article/SB122896381748896999.html. [bringing] the total population in custody to 2.3 million. Id. Lab. Resources to assist employers with legal issues surrounding employment-related background checks. Registries and watch lists can also include federal and international terrorist watch lists, and registries of individuals who are being investigated for certain types of crimes, such as gang-related crimes. 70105(c)(1)(A)(iv) (listing "Federal crime of terrorism" as a permanent disqualifying offense); see also 18 U.S.C. Id. 1515.7(a)(i) (explaining that only certain applicants with disqualifying crimes in their backgrounds may apply for a waiver; these applicants do not include individuals who have been convicted of a Federal crime of terrorism as defined by 18 U.S.C. Andrew, a Latino man, worked as an assistant principal in Elementary School for several years. It's not proof of guilt or anything else. "That . There are several kinds of evidence that may be used to establish that race, national origin, or other protected characteristics motivated an employer's use of criminal records in a selection decision, including, but not limited to: Biased statements. When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity. The statute mandates a criminal background check. Isaac confirms these facts, provides a reference from the restaurant where he now works on Saturday nights, and asks the County for a "second chance" to show that he is trustworthy. 732.102(b). Order No. 2000e et seq. Field, 2002 WL 32345739, at *1. "40, Employers performing background checks to screen applicants or employees may attempt to search these governmental sources themselves or conduct a simple Internet search, but they often rely on third-party background screening businesses.41 Businesses that sell criminal history information to employers are "consumer reporting agencies" (CRAs)42 if they provide the information in "consumer reports"43 under the Fair Credit Reporting Act, 15 U.S.C. Pew Ctr. of Pharmacy, Report of the AACP Criminal Background Check Advisory Panel, Dennis A. DeBacco & Owen M. Greenspan, Bureau of Justice Statistics, U.S. Dep't of Justice, Survey of State Criminal History Information Systems, 2010, SEARCH, Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information 83, SEARCH, Interstate Identification Name Check Efficacy: Report of the National Task Force to the U.S. Attorney General 21""22, Soc'y for Human Res. EFFECTIVE DATE: Upon receipt Background Checks When making personnel decisions -- including hiring, retention, promotion, and reassignment -- employers sometimes want to consider the backgrounds of applicants and employees. 1813(a)(5)). Equal Employment Opportunity Commission's guidance documents regarding the use of arrest or conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. This list is not meant to be exhaustive. The hiring manager at MPII invites Tad for a second interview, despite his record of criminal conduct. information on [the] adverse impact of [their employment selection procedures]." 1970) ("[I]nformation concerning a prospective employee's record of arrests without convictions, is irrelevant to [an applicant's] suitability or qualification for employment. Therefore, whether a covered employer's reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. After learning of the accusations, the school immediately places Andrew on unpaid administrative leave pending an investigation. 118 See, e.g., Keith Soothill & Brian Francis, When do Ex-Offenders Become Like Non-Offenders?, 48 Howard J. of Crim. He asserts that it has a disparate impact based on national origin and that his employer may not suspend or terminate him based solely on an arrest without a conviction because he is innocent until proven guilty. "56 Thus, an employer's decision to reject a job applicant based on racial or ethnic stereotypes about criminality - rather than qualifications and suitability for the position - is unlawful disparate treatment that violates Title VII.57. "In response to a question on an application form, Green [a 29-year-old African American man] disclosed that he had been convicted in December 1967 for refusing military induction. EEOC | Backgroundchecks.com An arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. "); Fed. EEOC Guidance on Background Checks - everifile.com In addition to these federal efforts, several state law enforcement agencies have embraced initiatives and programs that encourage the employment of ex-offenders. 451 (2006), http://www.jstor.org/stable/pdfplus/10.1086/501089.pdf; see also Harry Holzer et al., Urban Inst., Employer Demand for Ex-Offenders: Recent Evidence from Los Angeles 6""7 (2003), https://www.urban.org/research/publication/employer-demand-ex-offenders (describing the results of an employer survey where over 40% of the employers indicated that they would "probably not" or "definitely not" be willing to hire an applicant with a criminal record). The Department of Justice's Bureau of Justice Statistics' (BJS) Sourcebook of Criminal Justice Statistics and the FBI's Crime Information Services Division do not provide data for arrests by ethnicity. 44 See 15 U.S.C. 1 42 U.S.C. 29 Background Checks, supra note 25, at 4. "); id. Cent. "Where [an employer] has not maintained [such records, the EEOC] may draw an inference of adverse impact of the selection process from the failure of [the employer] to maintain such data . "); see Gregory v. Litton Sys. TSA refuses to grant John's waiver request because a conviction for conspiracy to use weapons of mass destruction is not subject to the TSA's waiver procedures.150 Based on this denial, Truckers USA rejects John's application for the port truck driver position. 167 See Int'l Union v. Johnson Controls, Inc., 499 U.S. 187, 210 (1991) (noting that "[i]f state tort law furthers discrimination in the workplace and prevents employers from hiring women who are capable of manufacturing the product as efficiently as men, then it will impede the accomplishment of Congress' goals in enacting Title VII"); Gulino v. N.Y. State Educ. 1343), among other crimes. In 2010, 28% of all arrests were of African Americans,65 even though African Americans only comprised approximately 14% of the general population.66 In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population.67 Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.68, African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population. . The following are examples of best practices for employers who are considering criminal record information when making employment decisions. Equal Employment Opportunity Commission (EEOC) lawsuit alleging that its use of criminal history in hiring decisions violated Title. 146See 46 U.S.C. information only on official, secure websites. 1) Does this Guidance prohibit employers from obtaining and using criminal background reports about job applicants or employees? 103 Schware v. Bd. Arrest and Conviction Records: Resources for Job Seekers, Workers and Interagency Reentry Council, Reentry Mythbuster! Incarceration rates are even starker for 20-to-34-year-old men without a high school diploma or GED: 1 in 8 White males in this demographic group is incarcerated, compared to 1 in 14 Hispanic males, and 1 in 3 Black males. However, once the new ownership of PR Agency learns about Leo's conviction record through a background check, it terminates his employment. Stat. ) or https:// means youve safely connected to the .gov website. Shawn Bushway et al., The Predictive Value of Criminal Background Checks: Do Age and Criminal History Affect Time to Redemption?, 49 Criminology 27, 52 (2011) [hereinafter The Predictive Value of Criminal Background Checks] ("Given the results of the current as well as previous [recidivism] studies, the 40-year period put forward in El v. SEPTA (2007) . 2410(h)), and arms export (22 U.S.C. For the first time, the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have co-published two short guides on employment background checks that explain the rights and responsibilities of the people on both sides of the desk. Mark Motivans, Bureau of Justice Statistics, U.S. Dep't of Justice, Federal Justice Statistics, 2009 "" Statistical Tables, at 6, Table 1.4 (2011), https://www.bjs.gov/content/pub/pdf/fjs09.pdf. While Nelson has successfully worked full-time for a landscaping company during the summers, Tad only held occasional lawn-mowing and camp-counselor jobs. After college, they both apply for employment with Office Jobs, Inc., which, after short intake interviews, obtains their consent to conduct a background check. 2d 1313, 1318 (M.D. Equal Emp't Opportunity Comm'n, http://www.eeoc.gov/eeoc/meetings/7-26-11/transcript.cfm#kane (last visited April 23, 2012) (describing why employers should partner with organizations that provide supportive services to ex-offenders). Rev. Deposit Ins. Pol. The III database compiles records from each of the state repositories, as well as records from federal and international criminal justice agencies.33. Id. Jobs for Ohio Offenders, Ohio Dep't of Rehab. 206 (1978 Comp.). 114 See, e.g., Brent W. Roberts et al., Predicting the Counterproductive Employee in a Child-to-Adult Prospective Study, 92 J. 2004) (indicating that the national security exception did not apply because there was no evidence that the government considered national security as a basis for its decision not to hire the plaintiff at any time before the commencement of the plaintiff's lawsuit, where the plaintiff had not been forthright about an arrest). However, national statistics indicate that Hispanics have similar or lower drug usage rates compared to Whites. 1320a-7(a)""(b)), defense contractor (10 U.S.C. The Equal Employment Opportunity Commission (EEOC) published updated guidance on employers' use of criminal background checks in April 2012 to address its concern that criminal background checks .

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