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Criminal Background Checks on Workers Set to Change

Child in JailCriminal background checks have become increasingly common in recent years as technology has made it easier for employers to look into our past. Background checks are also a convenient screening tool for hiring managers who need to quickly weed through growing numbers of applicants in a competitive labor market.

Before the advent of today’s technological developments, employers primarily used background checks only for workers who were in sensitive positions (such as handling money or working with children). Yet today, this practice has become extremely widespread across employment sectors. About three-quarters of all employers run criminal background checks on employees and job candidates, according to the Society of Human Resource Management.

However, last week federal regulators approved new rules that will make it simpler to identify job applicants who are convicted criminals or who’ve run into legal troubles in the past.

The Equal Employment Opportunity Commission approved new rules for employers who run criminal background checks, requiring careful review of the specific circumstances under which those searches can be used in employment screenings (or the workplace more generally) in light of discrimination against certain groups like racial minorities.

As the EEOC Chair Jacqueline Berrien argued, “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

The revisions are seen as a victory for workers who have struggled to gain employment or have lost jobs due to criminal histories. Samuel Miller, a labor attorney who manages criminal background suits on behalf of employees states that “This is a major change for the good in how employers review prospective employees. It creates presumption that consideration of criminal history is illegal,” he explained. “And it is backed up by thorough documentation of racial disparities. So it should be given much more credence by employers and judges.”

Earlier this year Pepsico’s Pepsi Beverages unit settled charges related to hiring discrimination through criminal background checks. The company had used arrest records to deny positions to applicants; in response, the EEOC lawsuit charged that this procedure disproportionately affected minority applications, and was thus illegal under U.S. labor laws.

The new 55-page guidelines on employment and hiring are designed to reduce racial and ethnic discrimination, permitting employers to use criminal background checks only in cases where they are essential to a specific position or necessary for the business. The guidelines also state that employers need to consider the “nature of the crime, the time elapsed and the nature of the job.”

The rule also advise employers that “arrests are not proof of criminal conduct” and may not be cause for excluding a job candidate.

The EEOC passed the new laws partly because African Americans and Latinos are far more likely to find themselves involved with the legal system. Current incarceration statistics shows that one in 17 white men are likely to serve jail time during their lives, compared to one in three for African-American men.

Employer attorneys and advocates were pleased that the EEOC did not entirely ban the use of criminal background checks. Katharine Parker, an employment attorney for Proskauer, stated that “The new guidance may require employers to tweak existing policies, but is largely a collective restatement of the EEOC’s longstanding guidance documents on employer use of criminal background checks.” EEOC spokeswoman Christine Nazer explained that the EEOC does not have the authority to ban “all uses of arrest or conviction records or other screening devices,” but “simply seeks to ensure that their use are undertaken carefully to ensure that employment opportunities are not denied inappropriately.”

To that end, she added, the new guidance from the EEOC:

  • Focuses on criminal record screening and employment discrimination based on race and national origin.
  • Discusses the differences between the treatment of arrest and conviction records.
  • Reviews the disparate treatment and disparate impact of such reviews.

The update to the rules has been a long time coming for employee advocates.

“The last guidance was written before anyone even knew what the Internet was, and a criminal background check was rarely used because it required so much personal attention to detail,” said Nancy Zirkin, executive vice president of The Leadership Conference on Civil and Human Rights. “This update reflects the reality of a 21st century workplace, where background checks are widely performed and applicants are thoughtlessly denied en masse.”

If you have experienced workplace discrimination, wrongful termination, denied L&I claims, or a requirement to undergo an independent medical exam, contact an experienced Seattle Employment attorney at Emery Reddy today. Our L&I Lawyers also represent workers who have injury claims with the Department of Labor and Industries, who want to appeal a rejected L&I claim, or who simply need help recovering their full workers compensation benefits.

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