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