The Equal Employment Opportunity Commission's Office of Legal Counsel released an advisory opinion on employer use of arrest and conviction records during the hiring process. The non-binding letter provides some insight into the Commission's current enforcement position and suggests the Commission: (1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question. To learn more about the EEOC's advisory opinion and its potential impact on employers, please continue reading Littler's Insight, EEOC Advisory Guidance Offers Insight on the Use of Arrest and Conviction Records, by Rod Fliegel and Jennifer Mora.
On Tuesday, July 26, 2011, the Equal Employment Opportunity Commission (EEOC) held its latest meeting on the topic of protections for job applicants with arrest and conviction records under Title VII of the Civil Rights Act of 1964. The full Commission heard remarks from the panelists related to three areas: "Best Practices From Employers," "An Overview of Local, State and Federal Programs and Policies" and "Legal Standards Governing Employers' Consideration of Criminal Arrest and Conviction Records."
Although for the past few years the EEOC has renewed its focus on the hiring process, including Title VII protections for ex-offenders, the current Commissioners (Jaqueline Berrien, Stuart Ishimaru, Constance Barker, Chai Feldblum and Victoria Lipnic) have not indicated whether the EEOC will update its 1987 Policy Statement on the Issue of Conviction Records under Title VII, and did not do so at the July 26 meeting. As a result, it remains important for employers who may be the target of disparate impact claims or charges challenging their conviction-based screening policies to: (1) understand the current state of the case law; and (2) continue to closely monitor developments at the federal, state and local levels in this dynamic area of the law.
To learn more about the EEOC's meeting on employers' use of criminal arrest and conviction records during the hiring process, and the potential implications for employers, please continue reading Littler's ASAP, The EEOC's Priorities Still Include Regulating the Use of Criminal Records by Employers, by Rod Fliegel and Barry Hartstein.
Multi-State Employers Must Revise Job Applications to Address New Massachusetts Background Check Law
Recently enacted legislation in Massachusetts will significantly affect employers’ use of criminal history information for employment purposes. While most provisions of the new law (pdf) do not go into effect until May 2012, one provision, effective on November 4, 2010, requires the immediate attention of multi-state employers.
This provision generally prohibits employers from inquiring in an “initial written application form” about an applicant’s criminal history. Two narrow exceptions permit questions about criminal history if a federal or state regulation (1) disqualifies the applicant from employment in the open position based on a criminal conviction; or (2) bars the employer from hiring for one or more positions an individual with a criminal conviction. The second exception, as written in the statute, is ambiguous. It is unclear whether an employer who is barred from hiring a convicted criminal for certain positions may inquire into an applicants’ criminal history on the initial employment application used for a variety of positions, including those that can be filled by a convicted criminal. This issue is particularly important for multi-state employers who use a standard job application form for all jurisdictions.
Before the new law’s November effective date, all multi-state employers should carefully reviewany job application form that is completed by Massachusetts applicants. If the employer has no position for which federal or state law prohibits the hiring of a convicted criminal, the employer should add an instruction to Massachusetts applicants, immediately below any question seeking information about criminal history, directing Massachusetts applicants not to respond. If the employer has one or more positions for which federal or state law prohibits the hiring of a convicted criminal, the employer should consider an instruction which directs Massachusetts applicants not to answer the question unless they are applying for one or more of a list of specified positions. The list would include those positions for which state or federal law prohibits the hiring of a convicted criminal.
Notably, the new law imposes no restriction on an employer’s ability to inquire into an applicant’s criminal history at any point in the hiring process after the initial written employment application has been submitted. Multi-state employers should note, however, that Massachusetts law prohibits employers from asking applicants about certain criminal records at any stage of the hiring process. To comply with these restrictions, employers must refrain from asking about any of the categories of criminal history listed below, or if asking a broad question that might otherwise call for disclosure, instruct the applicant not to disclose any of the below-listed categories:
• arrests not resulting in a conviction;
• sealed records;
• crimes committed while a juvenile unless charged as an adult;
• convictions for misdemeanors where the date of conviction precedes the question by more than five years; and
• first convictions for misdemeanors involving drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace.
In light of these restrictions, employers should exercise caution when making any oral inquiry related to criminal history. A better approach would be to move the written question about criminal history from the initial application to a later stage of the hiring process. For example, employers who require applicants to complete a background check authorization after screening the initial written application could add to the background check paperwork provided to Massachusetts applicants a written inquiry into the applicant’s criminal history. That inquiry would include a listing of the categories of criminal history that the applicant should not disclose. This approach allows employers to require a written answer to an inquiry into criminal history before making the final employment decision while complying with the new Massachusetts restriction.
To learn more about this legislation and its implications for employers, please see Littler ASAP, “Massachusetts Becomes the Second State to ‘Ban the Box’ on All Employment Applications” by Carie Torrence.
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