Understanding the EEOC’s Guidelines on Use of Criminal Records in Employment Decisions

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Understanding the EEOC’s Guidelines on Use of Criminal Records in Employment Decisions

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This session will explore the EEOC’s guidance and OFCCP’s Directive 306 and help you answer the question, “Should we conduct criminal background checks and if so, how can we do so without violating......

This session will explore the EEOC’s guidance and OFCCP’s Directive 306 and help you answer the question, “Should we conduct criminal background checks and if so, how can we do so without violating Title VII?”

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  • 1. Understanding EEOC and OFCCP Guidanceon the Use of Criminal Recordsin Employment Decisionspresented by:Nicole Butts, SPHRManager , Client Services Training at Berkshire Associates Inc.Marie RadcliffDirector, HR Regulatory Compliance at Pitney Bowes Inc.
  • 2. ObjectiveThis session will introduce the EEOC guidelines onthe use of criminal records in employmentdecisions, and OFCCP’s subsequent Directive306. We will explore EEOC’s recommendations asto when and how such records should be used andapplied in employment decisions, as well asOFCCP’s guidance to contractors on thecircumstances in which exclusions of applicants oremployees based on their criminal records mayviolate existing nondiscrimination obligations.
  • 3. EEOC Enforcement GuidanceConsideration of Arrest and Conviction Records in EmploymentDecisions Under Title VII of the Civil Rights Act of 1964
  • 4. Guidance on the Use of Criminal Records in Employment DecisionsDISPARATEImpact TreatmentConsequences Intent
  • 5. Guidance on the Use of Criminal Records in Employment DecisionsDisparate Treatment Discriminationand Criminal RecordsThere is Title VII disparate treatment liability whereevidence shows a covered employer rejected anAfrican-American applicant based on his criminalrecord but hired a similarly situated Caucasianapplicant with a comparable criminal record.
  • 6. Guidance on the Use of Criminal Records in Employment DecisionsDisparate Impact Discriminationand Criminal RecordsAn employer’s criminal record screening policy orpractice, which disproportionately screens out aprotected class, yet is not job related or consistentwith business necessity, is a violation of Title VIIdisparate impact.
  • 7. Guidance on the Use of Criminal Records in Employment DecisionsArrest RecordVs.Conviction Record
  • 8. Guidance on the Use of Criminal Records in Employment DecisionsThe “Green Factors”1. The nature and gravity of the offense or conduct2. The time that has passed since the offense orconduct or completion of the sentence3. The nature of the job held or sought
  • 9. Guidance on the Use of Criminal Records in Employment DecisionsProhibitions or Restrictions on Individuals withRecords of Certain Criminal ConductSome positions are subject to Federal, state orlocal prohibitions or restrictions on individuals withrecords of certain criminal conduct. For instance,Title VII’s national security exception, allowsemployers to “fail or refuse to hire” an individualbecause the individual “has not fulfilled or hasceased to fulfill” the federal security requirements.
  • 10. OFCCP Directive 306Complying with Nondiscrimination Provisions: Criminal RecordRestrictions and Discrimination Based on Race and National Origin
  • 11. Guidance on the Use of Criminal Records in Employment DecisionsNew Procedures Affecting Contractorsthat Utilize the Federally-AssistedWorkforce SystemNotice #1 for Employers Regarding Job BankNondiscrimination and Criminal Record ExclusionsNotice #2 for Employers Regarding Job PostingsContaining Criminal Record ExclusionsNotice #3 for Job Seekers to be Attached to JobPostings with Criminal Record Exclusions
  • 12. Guidance on the Use of Criminal Records in Employment DecisionsOther Relevant LawsFair Credit Reporting Act (FCRA)Work Opportunity Tax Credit (WOTC)Federal Bonding Programs (FBP)State and local laws
  • 13. Ban-the-Box
  • 14. Guidance on the Use of Criminal Records in Employment DecisionsEmployer Best PracticesEliminate policies or practices that exclude people fromemployment based on any criminal recordDevelop a narrowly tailored written policy and procedure forscreening applicants and employees for criminal conductIdentify essential job requirements and the actualcircumstances under which the jobs are performedDetermine the specific offenses that may demonstrateunfitness for performing such jobsDetermine the duration of exclusions for criminal conduct
  • 15. Guidance on the Use of Criminal Records in Employment DecisionsEmployer Best PracticesConduct individualized assessments on applicantsWhen asking questions about criminal records, limitinquiries to records for which exclusion would be jobrelated for the position in question, and consistent withbusiness necessityTrain managers, hiring officials, and decision makers aboutTitle VII, and its prohibition on employment discriminationKeep information about applicants’ and employees’ criminalrecords confidential—only use it for the purpose for which itwas intended