Employers are struggling to ensure their workers' and customers' safety yet comply with an Equal Employment Opportunity Commission policy on criminal background checks that legal experts say is vague and onerous.
In addition to failing to establish clear guidelines, the EEOC's insistence on an individualized inquiry into applicants' and workers' criminal backgrounds is particularly problematic for large employers that must process applications from numerous applicants.
The EEOC in April updated enforcement guidance on employers' use of arrest and conviction records. The guidance called on employers to consider the nature and gravity of the offense when evaluating criminal backgrounds, the time that has passed since the offense, and the nature of the potential job.
At the heart of the EEOC's policy is data showing that while blacks accounted for just 13.1% of the U.S. population as of 2012, they represented 38% of the sentenced prisoners under state and federal jurisdictions at the end of 2011.
Despite recent pleas by nine state attorneys general that the EEOC reconsider its policy as well as a federal judge's sharp criticism of its implementation, the EEOC is expected to stand firm on the issue (see related story).
“We're not preventing employers from doing due diligence in this respect,” said Tanisha Wilburn, a Washington-based senior attorney adviser in the EEOC's office of legal counsel. But “employers can't use this information as a screening tool,” and there must be a “careful and thoughtful process,” she said.
Not only is conducting a complicated process of checking criminal backgrounds onerous, “it raises the issue of hiring people who may cause liability, perhaps because of their criminal background,” said Richard B. Cohen, a partner at law firm Fox Rothschild L.L.P. in New York.
The agency in effect “is injecting a lot of subjective analysis into a process where human resources' inclination is to try to keep everything fairly objective in this approach,” said Peter J. Gillespie, of counsel at Fisher & Phillips L.L.P. in Chicago.
Furthermore, it is impractical particularly for large employers “to do a full-scale analysis into every applicant and the circumstances of every single conviction,” said Michael A. Warner Jr., a partner at Franczek Radelet P.C. in Chicago.
Another concern is whether the EEOC's policy conflicts with state laws, said Mark B. Wiletsky, of counsel at Holland & Hart L.L.P. in Boulder, Colo.
Depending on the industry or type of organization or business, “some organizations are required by state laws to conduct background checks,” Mr. Wiletsky said.
Despite the April guidance, legal experts say the policy remains vague.
“The EEOC's concerns about background checks really have not yet crystallized into enforceable standards or practices that can be followed,” Mr. Gillespie said. “They've left employers in a bit of a limbo situation in that they haven't really been able to provide employers with concrete examples of what aspects of a policy can create issues.”
“I don't think we have enough yet where anyone can do X, Y and Z and you're bullet-proof unless you just go all out and say, "Consider each one individually,'” said Michael W. Fox, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Austin, Texas.
Now is that “period of time where the litigation system begins to take an issue and evolve with it, and I think that's always a risky time for employers and those who are trying to provide counsel,” Mr. Fox said.
“You may win in the end” should the EEOC file suit on the issue, “but you've spent a lot of money getting to that point,” Mr. Warner said.
However, Sheila B. Gladstone, who heads the labor and employment practice at law firm Lloyd, Gosselink, Rochelle & Townsend P.C. in Austin, Texas, said “there is some reasonableness” to what the EEOC has said so far. “You need to balance your employee and customer safety with the fact there may be some criminal backgrounds that are completely irrelevant to the job.”
She also said the EEOC has had a general policy on the issue since the 1970s. “This isn't new, but the enforcement of it is new,” she said.
There are steps employers can take to avoid running afoul of the EEOC (see box, page 1).
The EEOC's policy “might even have the effect of absolving employers from the beginning, if they end up hiring someone with a criminal background and they're not allowed to ask about it” and problems develop subsequently, Mr. Cohen said.
The issue “is probably going to be with us for the next few years, and one that will result in a change of behaviors by employers over a period of time,” Mr. Fox said. “The threat of big litigation tends to focus one's mind.”