Posted on June 14, 2012 in Business Law
The U.S. House recently passed a spending and appropriations bill that would prevent the Equal Employment Opportunities Commission (EEOC) from spending its agency funding to implement, administer or enforce recent Guidance issued by the EEOC that attempted to crack down on employers’ use of criminal histories in employment decisions.
The Guidance, published April 25, 2012 and formally entitled, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, advises employers to exercise caution and restraint in using criminal background checks in making employee selection or retention decisions. Because the EEOC considers criminal records use to run a high risk of disparately impacting minorities and other protected classes, the Guidance cautioned employers to be certain that any employment decisions based on a background check be “job related and consistent with business necessity.” Unfortunately for employers, the Guidance also advised that the EEOC considered such decisions acceptable in only two situations, both of which would have imposed considerable additional “check and balance” obligations on employers that would have, according to many trade and industry groups opposing the Guidance, effectively made it financially and administratively impossible for the average employer to use criminal history information in decision making.
The House vote is a strong signal to the EEOC and the country’s employers that it supports business use of criminal history in hiring and retaining employees. Until the bill is law, however, the EEOC’s Guidance must be taken seriously by employers who do use, or are considering the use of, criminal arrest and conviction records in making human resource decisions. If you have concerns or questions about how the EEOC’s recent Guidance might impact your business, contact Wendland Utz, and its experienced Employment and Labor attorneys, for information and consultation.