The announced crack down by the Equal Employment Opportunity Commission (EEOC) in the illegal use of criminal histories when making hiring decisions has led to confusion for many small businesses across the country. As discussed in the post EEOC Issues Guidance on Employers' Use of Criminal History in Employment Decisions, the guidelines do not prohibit the use of criminal histories uncovered during background checks in making hiring decisions, but in how the records are used.
Nebraska car dealership owner Brian Hamilton said, “We have tests that all of our managers take that keep them up to date on labor rules. But I was not aware of that one.” Hamilton employs about 160 people in his four dealerships. According to Houston labor attorney Laurence E. Stuart, “Many companies that size don’t have an H.R. person and get minimal education about compliance issues.” However, the EEOC guidelines, which aim to prohibit discrimination, have been in place since the 1970s. What is new in the policy is the requirement of employers to establish procedures showing they are not using criminal records as a way of discriminating by race or national origin.
Part of the guidelines by the commission warn to not rely on arrest records in hiring decisions. The reasoning being, “arrests are not proof of criminal conduct”, and not hiring based on an arrest record could be discrimination. But, according to the guidelines, an employer can “make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.” And an employer is allowed to not hire an applicant if a criminal conviction is discovered in their background check, if the employer is able to demonstrate the reason for exclusion is “job-related for the position in question and consistent with business necessity.
Mr. Stuart believes employers would rather have less ambiguous criteria “and a simple yes-or-no answer to a hiring decision.” But, he says that the EEOC is requiring “employers to first determine what criminal convictions might rule applicants out for each job and then judge each candidate against the job in question, which could be a painstaking process.” According to Chicago area human resources consultant Andrea Herran, “It’s almost like you’re being squeezed on both sides of the law,” Ms. Herran said. “If somebody’s making them nervous with their criminal history, and they’re worried about getting sued on the other side, what’s a business owner supposed to do?”
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backgroundchecks.com - a founding member of the National Association of Professional Background Screeners (NAPBS®) - serves thousands of customers nationwide, from small businesses to Fortune 100 companies by providing comprehensive screening services. Headquartered in Dallas, Texas, with an Eastern Operations Center in Chapin, S.C., backgroundchecks.com is home to one of the largest online criminal conviction databases in the industry. For more information about backgroundchecks’ offerings, please visit www.backgroundchecks.com.