While employers are understandably concerned about attracting an aggressive Equal Employment Opportunity Commission's attention to their criminal background check policies, there are steps they can take to avoid such scrutiny, while still providing some assurance of their workers' and clients' safety.

These include careful adherence to EEOC guidelines and crafting job requirements to the particular position, experts say.

The EEOC has said the three factors that should be considered by employers in evaluating criminal backgrounds are the nature and gravity of the offense, the time that has passed since the offense, and the nature of the job.

Pamela Q. Devata, a partner with law firm Seyfarth Shaw L.L.P. in Chicago, said, “Employers would be wise to review their hiring processes to make sure they are in accordance with the EEOC guidance.”

Peter J. Gillespie, of counsel at law firm Fisher & Phillips L.L.P. in Chicago, said, “Employers that have practices that extensively rely on criminal background checks should, first of all, make sure that they've tailored the information that they're requiring about the applicant or employee to specific business needs.”

Similarly, “The employer should be careful about automatically ruling out somebody who has any sort of criminal history,” he said. “The check should be evaluated against the employee's expected job duties and who they may be interacting with, so that if a policy or practice is questioned, employers are in position to identify specific factors that led the company to implement these procedures.”

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Michael A. Warner Jr., a partner at law firm Franczek Radelet P.C. in Chicago, said, “It's important to have some objective guidelines as to which convictions are disqualifying, and which types of convictions are not.

“You do not want to have a blanket, across-the-board, any-type-of-conviction-will-disqualify-you policy, and you're going to want to give some thought as to being able to explain why somebody with a particular criminal history is unsuitable for employment in your workplace,” he said.

Obviously, for instance, a person with fraud convictions who would have access to money is problematic, Mr. Warner said.

Mr. Warner said he also advises his clients, if possible, to “do some level of individualized inquiry into an applicant's history.

“If they have a conviction that is more than seven years old, and is something that can be explained away as a youthful indiscretion,” or if there is evidence that suggests the conviction is not an indication of the person the applicant is now — that it occurred a long time ago and he is now gainfully employed, with no further brushes with the law — “that is information you should look at and consider” to try and avoid a blanket exclusion, he said.

While some experts suggest avoiding asking applicants about their criminal backgrounds, Sheila B. Gladstone, who heads the labor and employment practice at law firm Lloyd, Gosselink, Rochelle & Townsend P.C., in Austin, said, “I'm still cautiously advising my clients to ask for the information on the application,” but to include a statement that applicants will not be automatically screened out for employment based on their response. “

And do an individualized assessment, based on the three factors suggested by the EEOC,” Ms. Gladstone said.