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Criminal Record Restrictions and Discrimination Based on Race and National Origin

Directive 306 titled “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin” was signed on January 29, 2013 by Director Patricia Shiu and is effective immediately. This Directive provides information on a Training and Employment Guidance Letter (TEGL) issued by DOL’s Employment and Training Administration and Civil Rights Center and Enforcement Guidance issued by the Equal Employment Opportunity Commission last April on use of criminal history and conviction records.

One might wonder why the EEOC and the OFCCP are coming out with this guidance now. In fact, the Commission has well-established guidance, based on long-standing court decisions and policy documents issued over twenty years ago, applying Title VII principles to employers’ use of criminal records in employment. Their renewed focus on the issue is a direct result of employers’ increased access to criminal history information, case law regarding Title VII requirements for criminal record exclusions, and other developments. One of these other developments is recent studies which have found a significant number of state and federal criminal records databases that include incomplete or inaccurate records. However, in a survey, 92 percent of responding employers stated they subject all or some of their job candidates to criminal background checks. Employers cite ongoing efforts to combat theft and fraud, heightened concerns about workplace violence and potential liability for negligent hiring, and even some local, state, and federal laws as reasons for conducting criminal background checks.

Directive 306 clarifies that having a criminal record is not a protected basis under Title VII, however antidiscrimination laws may be implicated when criminal records are considered when making employment decisions because racial and ethnic disparities exist in the criminal justice system. OFCCP has reiterated it follows Title VII principles in interpreting Executive Order 11246 as amended, and therefore advises contractors to follow EEOC’s guidance in “implementing and reviewing their employment practices in compliance with the Executive Order.”

In April 2012, EEOC provided guidance in the form of three factors to consider when reviewing conviction records and recommended a number of best practices for employers to avoid liability. EEOC references three factors (the “Green Factors” from the 1975 Green v. Missouri Pacific Railroad decision), that are relevant to assessing if exclusion based on a criminal history is job related and consistent with business necessity.

  • The nature and gravity of the offense or conduct: The nature of the offense should be considered, with reference to the harm caused by the crime. In relation to the gravity of the crime, misdemeanors may be less severe than felonies.
  • The time that has passed since the offense or conduct or completion of the sentence: Permanent exclusions from all employment based on any and all offenses are inconsistent with business necessity. Employers should consider the amount of time that passed since the criminal conduct occurred based on the position.
  • The nature of the job held or sought: Employers should consider the job in question, the essential functions, the circumstances under which the job is performed, and the environment in which the job is performed. Linking particular criminal conduct to the essential functions of a job may demonstrate job relatedness and consistency with business necessity.

As a best practice and consistent with applicable laws, the Commission recommends the following to employers:

  • Eliminate policies or practices that exclude individuals from employment based on the existence of a criminal record.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing specific jobs.
  • Determine the duration of exclusions for criminal conduct.
  • Conduct individualized assessments on applicants. Although Title VII does not require individualized assessments in all circumstances, this practice allows employers to consider more complete information when making an employment decision and thereby help avoid Title VII liability.
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position consistent with business necessity.
  • Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination on how to implement policy and procedures consistent with Title VII.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

OFCCP has advised contractors to restrict inquiries to only those convictions that are job-related and consistent with business necessity and to ensure these records are kept confidential and used only for the purpose for which it was intended.

Contractors subject to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and/or utilizing the Federally Assisted Workforce System to list job openings, screen job-seekers, or receive referrals of qualified applicants, will receive a notice from the job posting agency. This is a TEGL required prescribed notice (‘‘Notice #1 for Employers Regarding Job Bank Nondiscrimination and Criminal Record Exclusions”) reminding them to comply with federal civil rights laws under which categorical exclusions of individuals based solely on an arrest or conviction history is prohibited.

Covered entities, which are job posting boards or American Job Centers (formerly known as One-Stop Career Centers) will also “be required to use a system (automated or otherwise) for identifying vacancy announcements that include hiring restrictions based on arrest and/or conviction records.” When such job postings are identified, the covered entities must provide a notice (#2) that provides an opportunity to the employer to remove or edit the job posting. Covered entities may continue to post vacancy announcements containing language excluding candidates based on criminal history when accompanied by a notice to job seekers (#3) explaining individuals with criminal history records are not prohibited from applying for the job posting.

Also as part of Directive 306, OFCCP will review your compliance with additional laws including the Fair Credit Reporting Act (FCRA), Work Opportunity Tax Credit (WOTC), and the Federal Bonding Program (FBP). The FCRA requires employers to obtain an applicant’s consent prior to running a background check for a criminal history report, WOTC provides credit for hiring qualified individuals with felony convictions, and the FBP reimburses an employer for losses incurred on account of employee theft. The directive also reminds employers to take into consideration their local or state laws concerning employment of individuals with conviction records.

Berkshire advises you to review your current policies, procedures, and practices related to the use of conviction records. We anticipate OFCCP may begin asking questions about the use of background checks in future audits, particularly if there is adverse impact in the applicant pools. If you have any questions or concerns about this directive, please feel free to contact Berkshire.



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