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The EEOC’s Criminal Background Screening Guidance: What Employers Need to Know

May 24, 2016

By Kandi Chapman

For employers, the (EEOC) U.S. Equal Employment Opportunity Commission’s 2012 update to its criminal background screening guidance has created not only mass confusion, but serious hiring uncertainties on exactly how to conduct criminal background checks without significant legal risk to your organization.

The EEOC’s efforts to enforce this guidance however, has revealed six crucial lessons to employers.  If followed (and understood) correctly, these lessons can boost your compliance confidence in your criminal background screening practices and assist in keeping your organization free from legal implications:

  1. Make sure that your consents and disclosures are legally permissible and up-to-date {review with your consumer reporting agency AND your legal council}.
  2. Always provide written notices to applicants.
  3. There are no safe harbors or protection for state law conflict.
  4. It is recommended to always Ban the Box to avoid EEOC scrutiny.  Do not practice blanket exclusions of candidates with criminal records.  I.e. “Felons need not apply.”
  5. Evaluate criminal records in accordance with the EEOC’s Enforcement Guidance, for the use of arrest and conviction records:
    • Nature and gravity of offense
    • Time passed since the offense
    • Job relatedness
  6. If a claim is filed against you by the EEOC, anticipate a systemic investigation of your criminal background screening practices {Have a company policy manual on your background checks process immediately available to show them}.

If you have questions regarding your criminal background screening policies and practices, it is always recommended that you consult your legal counsel however, MBI’s compliance department can assist you with suggestions for compliant screening practices.

For a checklist and further guidance on criminal background screening best practices, download MBI’s Criminal Background Screening Best Practices Guide.

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