Ninety-two percent of employers subject job candidates to criminal backgrounds investigations in order to combat theft and fraud, address concerns about workplace violence, and meet state and local laws, like licensing requirements or those requiring background checks for particular positions. However, whether employers can make personnel decisions based on a criminal record often presents a complicated legal issue that implicates state and federal law. A new set of guidelines issued by the Equal Employment Opportunity Commission (EEOC) indicates that an employer’s good reason to employ criminal background checks may not be enough. The EEOC’s new guidance clarifies the agency’s long-standing policy on employers’ use of criminal background checks in hiring decisions. Hiring decisions that treat criminal history information differently for different applicants based on their race or national origin is obviously discriminatory, but the report makes clear that even general hiring policies related to criminal history may be discriminatory. The EEOC ultimately says that hiring policies that exclude candidates based on criminal history should be job related and a business necessity. The guidelines offer employers some best practices for using criminal background checks and information about criminal history in hiring policies and hiring decisions. They will need to treat arrests and convictions differently, as well as eliminate general hiring policies or practices that exclude candidates from employment based on any criminal record and replace them with narrowly tailored written screening practices that consider the nature of the job, the nature and gravity of the criminal conduct, and the time elapsed since the conduct. This kind of individualized assessment in the hiring process allows candidates the chance to explain a criminal history report before they are rejected outright. The guidance explicitly states that federal law trumps state and local laws, which may create a conflict for employer depending on a state’s specific licensing or permitting laws for electronic security providers.

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Editor’s Note:

Get your own legal opinion but what this means is: Allow them a chance to explain–then you can reject them.