exclusion for the job pursuant to the EEOC’s Uniform Guidance on Employee Selection Procedures. However, employers need to be able to find sufficient data explaining how the conduct that led to the arrest or conviction relates to subsequent work performance or behavior.
Employers can also consider a “targeted screen” or indi-
vidual assessment of each situation. When using this type of screen, employers must consider the nature of the crime, the time that has elapsed since the crime, and the nature of the job. Then, employers must consider whether excluding that particu- lar individual for a particular job based on his or her criminal background would be job related and consistent with business necessity.
What to Do Now
The EEOC advises employers to eliminate policies and practices that automatically exclude applicants from jobs based on any criminal record, and to refrain from asking about convic- tion records on job applications. Also, employers need to train managers and other hiring decision-makers on Title VII prohibi- tions on employment discrimination. Employers should “develop a narrowly tailored written
policy and procedure” around screening for criminal conduct, and should memorialize the need for those policies and proce- dures in writing.. Employers should consider the work environ- ment associated with a position, and identify essential job re- quirements for each position. Then, employers should identify what specific crimes could make an applicant unfit to perform the job based on all available evidence. Employers should also consider what length of time since an applicant’s past criminal conduct is relevant, looking at each case individually. When asking applicants about their criminal records, hiring
managers should limit their questions to those that are job re- lated and consistent with business necessity. They must be sure to keep all information about criminal records confidential, not using it for any purpose except for making hiring decisions. The EEOC recommends putting in writing the justification for the policies and procedures.
Employers who have relied on criminal background checks
as an effective, efficient way to screen potential workers should consult with their attorneys and HR experts as soon as possible. They may need to fundamentally reconsider how they conduct screenings, employee interviews and management training in order to stay in compliance with Title VII and avoid charges of discrimination under the new guidance.
*** Richard D. Alaniz is senior partner at Alaniz and Schraed-
er, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the U.S. Department of La- bor and the National Labor Relations Board. Alaniz is a pro- lific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Alaniz at (281) 833-2200 or
ralaniz@alaniz-schraeder.com
August 2012
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