Attorney Generals from Nine States Oppose the EEOC’s Overreaching Guidance on Use of Criminal Background Checks

Robert Capwell

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EEOCThe Attorney Generals of Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia are speaking out against the EEOC’s overreaching guidance issued in April of 2012 on the use of arrest and conviction records used by employers within the hiring process.  In a communication dated July 24, 2013, the Attorney Generals expressed their concerns regarding the substantive position the agency is taking against a well known discount national retailer and global automotive manufacturer filed in June of 2013. The EEOC has filed suit against both employers alleging their use of bright-line criminal background checks in the hiring process which violates Title VII of the 1964 Civil Rights Act. 

The Attorney Generals collectively state, “we believe that these lawsuits and your application of the law, as articulated through your enforcement guidance, are misguided and a quintessential example of gross federal overreach.  Our states urge you to consider your position and these law suits.”  They further wrote, “We are troubled that the EEOC’s real true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII to former criminals.”  Both law suits are still in the early stages and it is unclear if the EEOC’s claims will ultimately prevail. 

Since the passage of the EEOC’s guidance in April of 2012, employers, government agencies, states, the background screening industry, along with other affected stakeholders have voiced their dismay over the guidance.  Employers should ultimately be aware that the EEOC has identified eliminating barriers to hiring as one of its highest priorities in its strategic enforcement plan.

As an employer, you need to be heard and remind the EEOC about why you utilize criminal background checks in your employment decisions.  They need to clearly understand the significant risks and costs of workplace violence, fraud, theft and a need to protect vulnerable populations within the workplace.  It’s an employer’s duty to provide a safe and productive workplace for their employees.

Employer Resources for Criminal Background Checks

For now, employers can reference the “Enforcement Guidance” on the EEOC’s website along with a Q&A section available for employers as a resource.  The Enforcement Guidance also offers examples of individualized assessments that are consistent with meeting Title VII regulations.  “Section VIII. Employer Best Practices” also provides insight into general considerations, developing policy, questions regarding criminal records, and confidentiality of such information.  Employers should also revisit compliance measures throughout the process to ensure appropriate disclosure and authorization to conduct background checks, along with the inclusion of specific state notifications for proper compliance.  The Fair Credit Reporting Act - FCRA provides the rules and responsibilities that must be followed by employers and also consumer reporting agencies (background screening companies) to ensure full compliance with the law. Employers are also urged to consult with their employment counsel to review policies and procedures on an on-going basis.  EBI, along with other industry experts will continue to weigh-in and keep you informed regarding developments regarding this topic.

Employment Background Investigations Inc., (EBI) is committed to providing employers with valuable education and resources on changing legislation, cutting-edge and compliant solutions to meet federal, state, local, and international mandatory requirements.  EBI is not providing legal advice or counsel and nothing provided in this publication should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their responsibilities or if they have questions on any information provided by EBI.

EBI is a technology driven innovator and leader in providing domestic and global pre employment background checks, drug testing, occupational healthcare, and I-9 compliance solutions for employers.  With emphasis on business process optimization, EBI services over 5,000 clients in over 200 countries and territories worldwide and specializes in the development, implementation and management of comprehensive and customized employment screening programs for large and multi-national clients.  EBI is a founding member and active participant within the National Association of Professional Background Screeners (NAPBS).  EBI is the only background screening firm to hold an ISO27001:2005 certification for information security and to be accredited by the Background Screening Credentialing Council (BSCC) created by the NAPBS.

Background Checks, EEOC & FCRA

Robert Capwell

Posted By: Robert Capwell

EBI’s Chief Knowledge Officer, Mr. Robert E. Capwell, is considered one of the leading experts in the background screening industry with over 22 years of experience in the field. Mr. Capwell was a contributing author of the second edition of the ASIS Pre-employment Background Screening Guidelines and has written numerous articles and whitepapers for various publications including a periodic column on background screening for The Society for Human Resource Management (SHRM) Online. He has been quoted in The Wall Street Journal, Human Resource Executive Magazine, Entrepreneur Magazine, and several HR-related publications. Mr. Capwell speaks regularly to industry colleagues and HR Professionals both nationally and internationally.

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