Criminal Background Checks: Don’t Get Caught in the EEOC’s Crosshairs

When the Equal Employment Opportunity Commission’s criminal records guidance was made stricter in 2012, employers reacted with concern and confusion.
A survey released this year by EmployeeScreenIQ showed that while more employers are following the EEOC guidance, many still admit to being out of compliance, putting them at considerable legal risk.
A new EmployeeScreenIQ white paper provides clarity to employers about what they need to know to stay out of the commission’s crosshairs.
“The EEOC’s Criminal Background Screening Guidance 3 Years Later: 5 Lessons Employers Need to Know” suggests best practices on issues ranging from safe harbors for state law conflicts to implementing “ban the box” as well as what to expect if the EEOC files a claim against a company.
“The EEOC has been extremely aggressive in its enforcement of the criminal records guidance,” says Nick Fishman, EmployeeScreenIQ’s chief marketing officer.
“As a result, it’s extremely important for employers to follow these best practices. Otherwise, they risk facing costly legal action and the potential for damaging negative publicity.”
The white paper also includes a list of specific EEOC guidance compliance-related screening recommendations for all employers who conduct criminal background checks.
EmployeeScreenIQ’s survey revealed progress in compliance, but many employers are failing to comply with some of its key elements.
Among the relevant findings:

• 53% of respondents said their organizations ask candidates to divulge criminal history on their job applications, indicating most employers are still not following the EEOC recommendation to refrain from asking for self-disclosure on job applications.
• 72% said their organizations perform individualized assessments for candidates with criminal convictions so they can explain the circumstances, a de facto requirement of the guidance.
• Compliance is a major concern for employers, with 51% of survey respondents citing it as their most significant background screening challenge.

A report detailing and analyzing the survey’s results is available for complimentary download here.
“From a compliance perspective, the results of the survey are good news, but not great news,” Fishman says. “Too many companies’ practices still put them in danger of drawing EEOC scrutiny.”
Free CBIA Webinar
To learn more about the latest issues employers face when considering or conducting criminal background checks and all other forms of background inquiries, join us for the CBIA webinar, Background Checks: Latest Trends for 2015, Dec. 9, presented by Al Sparaco, CPP, founder and president of Baker St. Associates.
Al will discuss how to avoid liability claims and how best to ensure that your screening program is right for your business and in compliance with federal, state, and local laws—in particular with the EEOC and the Fair Credit Reporting Act (FCRA), overseen by the Federal Trade Commission (FTC).
Over the last few years, there have been a number of federal cases—including some recent class action suits—that have targeted violations of the FCRA. Both the background screening companies and employers are named as defendants in these actions.
In addition to the FCRA violations, the suits disclosed that some of the screening companies had provided background reports that contained incorrect, outdated, or incomplete information about the prospective employee. Settlements in some of these cases are in the millions.
Topics include:

• Employer obligations are under the FCRA and how to avoid gaps in your background screening program
• What you need to know about how criminal record check information is obtained and how these checks can put an employer at risk
• How to develop and/or maintain a background screening program that helps to ensure a safe and secure work environment while preventing costly liability exposures