The Equal Employment Opportunity Commission (EEOC) took a hard look at certain hiring practices last year, and is expected to keep use of arrest and conviction records in its sights this year.
In light of the EEOC’s stated desire to file more systemic lawsuits, its continued focus on hiring and its increased focus on criminal background check issues, the law firm Cozen O’Connor outlined steps employers can take to minimize the risk of an EEOC investigation. The American Staffing Association shared these with its members.
PRofessional Solutions, LLC is passing along this valuable information to help our clients and colleagues avoid suits and penalties. Here, verbatim, are Cozen O’Connor’s practical tips (emphases added):
- Employers should review their hiring and background check policies generally. Blanket policy statements, such as “The Company will not employ individuals who have been convicted of X offense,” are red flags for the EEOC and should be avoided unless absolutely necessary.
- Employers should avoid considering an applicant’s arrest record.
- In instances where criminal convictions may be job related and/or consistent with business necessity, employers should evaluate: (1) the nature of the specific crime at issue; (2) the time elapsed since the individual was convicted of the crime; and (3) the nature of the job at issue.
- Employers should be wary of conducting credit checks on all applicants regardless of the position sought. This is another area of interest for the EEOC and various states have passed laws or are considering passing laws limiting an employer’s ability to consider an applicant’s credit history.
- Employers should review and potentially eliminate any maximum leave policies, even where those policies provide a seemingly generous fixed leave. Instead, employers should evaluate situations on a case-by-case basis before making any employment decisions.
Think these issues are only suggestions? Last January the EEOC announced that Pepsi Beverages agreed to pay more than $4 million dollars and provide job offers and training to settle a discrimination charge involving their criminal background check policy. The EEOC had made the case that Pepsi’s policy disproportionately excluded black applicants from permanent employment.
And more recently, the EEOC has challenged Dollar General Corporation’s criminal background check policy, which excludes individuals with certain criminal convictions for specified periods. It claims this also has a disparate impact on African-American job candidates and employees, and will likely file suit against Dollar General.
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