New federal EEO expectations for criminal background checks

Criminal background checks can be an effective way to avoid problems in the workplace, but if not done properly, background check processes can create more headaches than they avoid, thus employers should use them with caution. 

A recent 4-to-1 vote by the U.S. Equal Employment Opportunity Commission (EEOC) to approve new guidance for employers conducting criminal background checks is certainly going to raise the bar even higher for employers.While the guidance from the EEOC is not a regulation, it is a warning of growing concern by the Commission and will help inform its field staff when conducting investigations and considering enforcement actions. 

One of the key motivators for this decision was driven by concerns about employers who inappropriately used criminal background checks. The most egregious example was employers who screened out applicants based upon arrest histories, not taking the time to determine if the arrests led to convictions. In too many cases, arrests resulted in dropped charges, meaning people who were found not guilty in the eyes of the law were found guilty in the eyes of an irresponsible employer.

Another area which led to problems was the adoption of “zero tolerance” approaches to considering records of criminal convictions of applicants. In this approach, any conviction, no matter how long ago or relevant to a position, would result in applicants being passed over for hiring opportunities. For example, while it may make sense to exclude hiring a middle-aged adult for a job requiring them to drive company vehicles who had six DUI convictions in a row, being charged and later convicted within a year of their last conviction (or release from jail), it certainly wouldn’t make sense to shut out a qualified applicant who had a single DUI conviction ten years ago right out of high school.

A case where an appropriately-handled background check could have prevented problems was in the experience of an employee who was terminated after stealing and using a fleet fueling card to fill up the gas tanks of several non-employees at nearby gas stations, only to find out that a past background check which indicated theft and breach of trust convictions had been overlooked.

Doing human resources in the construction industry means you’re going to see a lot of candidates for employment who has small offenses, such as traffic tickets, and plenty of offenses committed when younger. Anyone who has been in this industry for long will tell that it’s not an industry where everyone is a candidate for sainthood, but it is one where the smart HR person can find good hard-working people who aren’t afraid to get their hands dirty to get a tough job done. Anyone who takes a zero-tolerance approach towards criminal background check results for applicants is only going to make it harder to find talented, qualified personnel in this or other industries.

Whatever industry you’re working in, conducting criminal background checks can protect your company and your co-workers. But it’s important to make sure you are properly informed and use information obtained from these checks in a cautious, deliberate and fair manner so as to protect equal employment opportunities in your workplace, as well as your company from lawsuits and EEOC scrutiny.