Background-Check Policies under Scrutiny – Feds Sue over Criminal Checks

Concerns over workplace security and skyrocketing litigation costs have made pre-employment background checks an essential tool for many businesses – large and small. According to a 2010 survey the Society for Human Resource Management some 92% of employers use criminal-background checks for some or all job openings.

But in recent years, employer use of criminal checks and credit reports have come under increased scrutiny from federal, state, and local lawmakers. In June, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing Title VII and other civil rights laws, filed lawsuits against two large employers – Dollar General and BMW – based on allegations that the employers’ background screening amounted to discrimination against blacks.

EEOC’s lawsuits serve as a good reminder that employers’ scrutiny of applicants must conform with federal, state and local laws. Last year, EEOC issued new guidance on conducting criminal record checks. The guidance states that employers should consider three criteria in making a hiring decision on an applicant with a criminal history: (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct, and (3) the nature of the position. Most importantly, blanket policies that categorically reject prospective employees with past convictions are illegal.

In addition to EEOC’s concerns, applicants and employees have privacy rights that they can enforce by suing you if you pry too deeply.

ALWAYS Get Consent

Require consent, in writing, from all applicants.  Detail how and what you plan to check. If an applicant refuses to consent to a reasonable request for information, you may legally decide not to hire the worker on that basis.

Check Only Job-Related Information

Stick to information that is relevant to the job for which you are considering the worker. For example, if you are hiring a security guard who will carry a weapon and be responsible for large amounts of cash, then a check for past criminal convictions is reasonable.  The major background check vendors offer a variety of reports that address the individual needs of a business. But make sure the company complies with the Fair Credit Reporting Act (FCRA), the federal law that regulates the acquisition and use of personal information.

For more information, download NFIB’s fact sheet on this topic. You can also review NFIB’s webinar on Hot Topics in Labor & Employment Law.

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About Beth Milito

Elizabeth Milito serves as Senior Executive Counsel with the National Federation of Independent Business (NFIB) Small Business Legal Center, a position she has held since March 2004. She is admitted to practice law in the District of Columbia and Maryland. Ms. Milito previously worked as a trial attorney in Maryland and the District of Columbia and was the editor of notes and comments for the Maryland Law Review at the University of Maryland School of Law where she earned her Juris Doctor. Ms. Milito is responsible for managing cases and legal work for the NFIB Small Business Legal Center. She has testified before Congress on the small business impact of regulation and the civil justice system. She frequently counsels businesses facing employment discrimination charges, wage and hour claims, wrongful termination lawsuits, and in most other areas of human resources law. She also provides and develops on-line and on-site training on a variety of employment law matters and is a frequent media spokesperson on employment and labor matters. Ms. Milito also comments and writes regularly on small business cases before federal and state courts.
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