New EEOC Guidance Regarding the Use of Criminal Records in Employment Decisions
The following is a guest blog post by Rustin Duncan, Associate at King, Crotts & Associates, Greenville SC. The views expressed are the opinions of the author and do not reflect those of the Law Office of James Alston.
The Equal Opportunity Employment Commission (EEOC) recently updated their Guidance to employers regarding their request and use of an employee’s or potential employee’s criminal record.
The EEOC is the federal agency that enforces federal laws against employment discrimination. Though it provides guidance it does not make law. This means that judges hearing cases that involve employment discrimination do not necessarily have to follow EEOC guidance.
No Federal law exists that prohibits employers from inquiring about an employee or applicant’s arrest and/or conviction records. However, the new Guidance makes clear that using such records as the only reason to not hire an individual could limit the employment opportunities of some groups legally protected from discrimination and is not allowed.
The new Guidance makes it clear that an arrest and a conviction are separate. A person could have been arrested for a crime but that is not sufficient evidence that they have actually committed a crime. A person who has been convicted of a crime is presumed to have actually committed the crime. The new Guidance strongly encourages an employer to let the employee or applicant to explain the circumstances of any arrest or conviction and then determine whether the explanation is credible.
The new Guidance states that if the employer, after the explanation, believes the employee or applicant actually committed the crime they were arrested or convicted for, that alone should not keep the employer from employing the employee. The employer should only deny employment based on the arrest if it is clear that the employee or applicant cannot be trusted to perform their job duties when they consider the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred.
While it stopped short of prohibiting employers from asking about an applicant’s criminal record and delaying a criminal background check until after the applicant is hired, the new Guidance suggests this would be a wise thing for employers to do.
The new Guidance also sets out examples of what will likely violate the law related to criminal records. One example says that an online application that automatically rejects an applicant who discloses that they have a criminal record is likely against the law. Another example says that a current employee who is fired as a result of a pre-hire arrest or conviction after a new owner or manager takes over the termination is not related to a workplace or job related safety or performance issue is a likely violation of the law. An example is also given that states it is probably not a violation of the law if an employee if fired for a workplace related incident that led to an arrest or conviction and the employee is fired for the misconduct and not the arrest or conviction itself.
The new Guidance also reiterates long held legal precedent that federal law take priority over state law and that employers cannot use a state law that holds something to the contrary to the federal law or the new Guidance to escape liability on discrimination based on a person’s criminal history.
The new EEOC Guidance clarifies a fairly long history related to the use of criminal records in employment decisions. The new Guidance makes it clear that denying a person employment based solely on a criminal arrest or conviction is not allowed under the current federal employment discrimination law.