EEOC – Employment Guidance/Criminal Records: Guest Blog

Today is a special day. Cary Ichter of Ichter Thomas, LLC shared this with me and I wanted to share it with you. Enjoy. – Jim

The Equal Employment Opportunity Commission (EEOC) has recently issued new guidance to supersede earlier policies regarding hiring practices that discriminate against employment candidates with criminal records.

The new policy requires companies (defined as companies with more than 15 employees) to affirmatively establish procedures to show they are not using criminal records to discriminate when hiring new employees.

Because arrests are not proof of criminal conduct, the guidance warns employers not to use arrest records at all in hiring decisions. According to the Commission, basing a hiring decision on an arrest record is presumptively discriminatory. A conviction for a crime, however, “will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas.”

In order to exclude an applicant with a criminal conviction, it is necessary to demonstrate that the exclusion is “job-related for the position in question and consistent with business necessity.” The procedure for determining this exclusion is complex and requires planning by the employer. First, an employer must determine what criminal convictions might rule applicants out for each job.

Second, if an employer concludes on the basis of three factors (those being the nature of the crime, the time elapsed since commission of the crime, and the nature of the job) that an applicant is ineligible, the employer must then do an individual assessment which requires giving the applicant an opportunity to provide a response to the assessment made by the employer.

Even if a company follows this procedure, the EEOC could still conclude the employer was hiring based on discriminatory practices if there is a less discriminatory alternative that would achieve the same result (for example, instead of excluding people with drug convictions, an employer could simply institute a drug test screening policy). In order to avoid a fight with the EEOC, the new guidelines urge companies to wait to ask about criminal convictions “until they have determined that the person is qualified.”

If you have any questions, please do not hesitate to call Cary Ichter at Ichter Thomas, LLC at (404) 869-7600. We can assist you in developing hiring procedures that will protect you from liability and that will ensure that you are in compliance with the new guidelines all for a flat fee.

Cary Ichter

An EEOC update – From Ichter Thomas, LLC

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