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ARC: HOW COMPANIES CAN PROPERLY CONDUCT CRIMINAL BACKGROUND CHECKS ON WORKERS AND POTENTIAL HIRES

EEOC guidance on background checks leaves some questions

Most recent guidance leaves some questions on state-law interplay

EEOC

WASHINGTON—Employers may feel they are between a rock and a hard place over how they use arrest and conviction records in employment decisions after the U.S. Equal Employment Opportunity Commission issued updated enforcement guidance on the issue last week.

That is because the EEOC guidelines are unclear as to what employers should do in cases where they conflict with state law, observers say.

However, the guidance, which was approved by the commission in a 4-1 vote, will be a useful guide to the EEOC's pronouncements on the issue of criminal background checks, they say.

“The new guidance clarifies and updates the EEOC's longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers and many other agency stakeholders,” EEOC Chair Jacqueline A. Berrien said in a statement,

Peter J. Gillespie, of counsel at law firm Fisher & Phillips L.L.P. in Chicago, said the EEOC over the past couple of years has been “strongly encouraging employers to look carefully at a range of common practices that the agency believes could have a disparate impact on minorities,” including criminal background checks, as well as refusals to hire the unemployed and the use of credit checks as a screening mechanism.

He said this is part of the EEOC's effort to “shake up” what it views as “the standard industry practices that occur during the hiring process.”

The EEOC said its criminal background guidance builds on longstanding guidance documents the agency issued more than 20 years ago.

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Commenting on the guidance, Leslie E. Silverman, a partner with law firm Proskauer Rose L.L.P. in Washington and a former EEOC vice chair, said little of the guidance is new “or shattering.”

Richard B. Cohen, a partner with law firm Fox Rothschild L.L.P. in New York, said, “The EEOC didn't go as far as it might have gone in using these rules they created.” It suggested “that if you have a good-faith system to narrowly tailor your search, you'll probably be OK.” This is “not as draconian as it might have been” for employers, Mr. Cohen said.

The Washington-based Lawyers Committee under Civil Rights Law said in a statement that it “will greatly reduce the misuse of criminal history background checks to deny employment to persons of color.”

It “strengthens enforcement efforts against employers who are misusing criminal background checks and provides clear guidance to employers on the appropriate use of such background checks.”

But there is concern about conflicts with state law. The Alexandria, Va.-based Society for Human Resource Management said in a statement that while it “is pleased that the guidance does not appear to impose a one-size-fits-all set of rules on employers,” it “remains concerned with the potential conflict between this federal guidance and state laws that require criminal background checks in some industries and for some positions.”

Others say they also are concerned about the issue. Michael W. Fox, a shareholder with law firm Ogletree Deakins Nash Smoak & Stewart P.C. in Austin, Texas, said if the state and federal laws conflict as to when criminal background checks are permitted, “you're going to have to decide which one is right, and any time employers are put in the position of having to make a technical legal judgment” it is “very problematic” and places a burden on the employer.

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“That's what really causes employers to have heartburn, and worse,” he said.

“I can see how employers will feel burdened and confused by this, because it is confusing,” Mr. Cohen said.

Michael A. Warner Jr., a partner with law firm Franczek Radelet P.C. in Chicago, said: “I would agree with SHRM that the EEOC guidance is not very clear...and could create some conflict.”

However, Fisher & Phillips' Mr. Gillespie said, “If the employer considers the nature of the conviction and the timing of it, I don't think it necessarily creates a conflict between the state law and the EEOC's guidance.”

Responding to a query on the issue, an EEOC spokeswoman quoted Title VII of the Civil Rights Act of 1964 in an e-mailed response, stating the federal law “pre-empts state and local laws or regulations if they "purport to require or permit the doing of any act which would be an unlawful employment practice' under Title VII.”

The ruling also has wider implications, said Mr. Fox, who pointed to statistics on the disproportionate incarceration rate of blacks.

According to U.S. Department of Justice data released last week, blacks accounted for 38% of the jail population as of June 30, 2011. They represented 12.6% of the total U.S. population in 2010, according to the U.S. Census Bureau.

“Employers are going to have to end up being sort of the intermediary that bears a lot of the risk as society works out a big issue,” said Mr. Fox. “Maybe that's just a fact of life, but it doesn't make life any more pleasant for employers.”

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