Does your company conduct criminal background checks as part of the employment application process? Do you follow EEOC regulations? Many companies are surprised to find out that their background investigations do not comply with EEOC regulations until it’s too late and they are facing lawsuits or fines. Thankfully, employers can avoid violations through compliance with the EEOC’s Green Factors. We can help you develop a background investigation policy that is thorough and clear.
Recently, the retail chain Dollar General settled a class race discrimination lawsuit from the EEOC for $6 million. According to the lawsuit the retailer violated the EEOC regulations and federal law by denying employment to African Americans at a noticeably higher rate than white prospective employees as a result of failing the criminal background checks.
Your employment screening processes and criminal background checks should list criminal violations that are related to business necessity and job related. If not, your firm risks of violating Title VII of the Civil Rights Act of 1964. That means that you must have a policy that clearly shows how different prior convictions are related to the job the person is applying for, and why it is vital that you remove individuals with that conviction from your hiring pool.
There are numerous easy ways to comply that are outlined in this blog and the EEOC regulations. In short, your company:
- Must show that the policy is there to link specific criminal conduct and its dangers with the risks and duties of the position
- Must be prepared to meet the “job related and consistent with business necessity” defense requirements
What are the EEOC’s Green Rules? You can find more information here. The EEOC’s Green Rules outline how your business should handle prior convictions that appear on criminal background checks. The Green Rules are:
- Consider the elapsed time between the date of conviction and application
- Consider the history of work since the conviction
- Consider the job-relatedness and business necessity of the criminal behavior
We encourage you not to overreact to “ban the box” legislation in your area by removing questions about prior criminal convictions from your applications as long as you have a clear criminal background checks policy.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at randisiandassociates.com.
